United States Court of Appeals
for the
District of Columbia Circuit
TRANSCRIPT OF
RECORD
BRIEF FOR APPELLANT AND JOINT APPENDIX
tBmtefa &tate£ Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
April Term 1956
No. 13,255
GEORGE P. KINSLOW,
Appellant
v.
CHARLES E. WILSON,
Secretary of National Defense
CHARLES SPARKS THOMAS,
Secretary of the Navy
PHILIP YOUNG,
Chairman of the United States
Civil Service Commission
GEORGE M. MOORE,
United States Civil Service Commissioner
FREDERICK J. LAWTON,
United States Civil Service Commissioner,
Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_ , ■ , Cnfv'nVa Circuit
District oj l ••
iw \ 9
ALBERT J. BADER
908 Finance Building
Philadelphia 2, Pennsylvania
SAMUEL I. SHERWOOD
602 Columbian Building
Washington 1, D. C.
Attorneys for Appellant
.. .........
*"*
Robert L Thiel, Printer
Washington, D. C.
mm
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No. 13,255
APPELLANT'S STATEMENT OF QUESTIONS PRESENTED
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1. Does not the Veterans Preference Act of 1944 require that a
Federal agency retain in employment a disabled, honorably discharged
veteran, affected by a reduction in force, by reassigning him to another
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position without reduction in pay or with the least reduction possible?
2. Are not the rights of such veteran violated when he is reassigned
to a position at an hourly pay rate substantially less than the rate he was
receiving, when there is available a position for which he is admittedly
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qualified having a starting hourly rate slightly less than the rate he was re-
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ceiving? I
3. Is it a promotion for a veteran to be reassigned to a position
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whose range of rates is slightly higher than the range 6f rates for the po-
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sition at which he was employed, where in fact the change would result
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in plaintiff then receiving substantially less money and a starting hourly
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pay rate of a lesser amount than the hourly pay rate which he had been
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receiving?
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JURISDICTIONAL STATEMENT
(ii)
INDEX
Page
. 1
STATEMENT OF THE CASE. 2
STATUTES AND REGULATIONS INVOLVED. 4
STATEMENT OF POINTS. 6
SUMMARY OF ARGUMENT.>. 7
ARGUMENT. 8
1. Veterans Preference Should Be Broadly Applied. 8
2. Plaintiff’s Reassignment Rights . 9
3. Plaintiff Was Not Given A Reasonable Change In Position. 10
4. To Have Given Plaintiff The Position He Sought Would
Not Have Been A Promotion. 13
CONCLUSION. 16
TABLE OF CASES
Brannanv. Elder, 341 U.S. 277 (1951). 71 S. Ct. 685 . 2
Fass v. Gray, 91 U.S. App. D.C. 28(1952), 197 Fed. 2nd 587 . 2
Hilton v. Sullivan, 334 U.S. 323(1948), 68 S. Ct. 1020 . 2, 8
Reynolds v. Lovett, 91 U.S. App. D.C. 276 (1952), 201 Fed. 2nd 181 .... 2, 9
Schweizer v. United States (U.S. Ct. Cl .), 121 Federal Sup. 928 . 9
Wettrev. Hague(C.C.A. Mass. 1948). 168 Fed. 2nd 825 9
UNITED STATES COURT OF APPEALS
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For The District Of Columbia Circuit 1 ,
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April Term 1956
No. 13,255 j
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GEORGE P. KINSLOW,
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Appellant
v.
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CHARLES E. WILSON,
Secretary of National Defense
CHARLES SPARKS THOMAS,
Secretary of the Navy
PHILIP YOUNG, !
Chairman of the United States
Civil Service Commission
GEORGE M. MOORE,
United States Civil Service Commissioner i
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FREDERICK J. LAWTON, 1
United States Civil Service Commissioner, j
Appellees
—
APPEAL FROM THE UNITED STATES DISTRICT COjURT
FOR THE DISTRICT OF COLUMBIA
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BRIEF FOR APPELLANT
JURISDICTIONAL STATEMENT |
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This action was brought by the plaintiff in the United States District
Court for the District of Columbia charging defendants with violation of the
Act of August 23, 1912, c. 350, Sec. 4, 37 Stat. 413, 5lj.S.C. 648, and
Sections 12 and 14 of the Veterans Preference Act of 194^, c. 287, Sec.
12 and 14, 58 Stat. 390, amended Aug. 4, 1947, c. 447, 61 Stat. 723, 5
U.S.C. 861, 863. |
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Plaintiff sought a declaratory judgment fixing and determining his
rights as a veteran preference eligible in governmental employment, and
a mandatory injunction restoring and assigning him to the position of type¬
writer repairman.
Sections 2201 and 2202 of Title 28 of the United States Code provides
for suits for declaratory judgments in any court of the United States, and
states that any such declaratory judgment shall have the effect of final
judgment and be reviewable as such.
Jurisdiction rests on the decisions in the following cases, in each
of which the plaintiff sought relief substantially similar to the relief sought
by the plaintiff in this case.
Hilton v. Sullivan, 334 U.S. 323 (1948), 68 S. Ct. 1020.
Brannan v. Elder , 341 U.S. 277 (1951), 71 S. Ct. 685.
Fass v. Gray , 91 U.S. App. D.C. 28 (1952), 197 Fed. 2nd 587.
Reynolds v. Lovett , 91 U.S. App. D.C. 276 (1952), 201 Fed. 2nd 181.
STATEMENT OF THE CASE
Plaintiff is a disabled, honorably discharged soldier (JA 1, 34). In
July, 1953, he was employed under civil service in the position of Puncher
and Shearer at the Philadelphia Naval Shipyard, in Philadelphia (JA 35).
The efficiency rating of the plaintiff has at all times been satisfac¬
tory (JA 36), and it is admitted that he is a preference eligible within the
meaning of the Veterans Preference Act of 1944 (JA 2).
On July 5, 1953, plaintiff received a notice from the Commander of
the Shipyard advising him that his service would be terminated on August
7, 1953, as a result of a reduction in force (JA 13-14). This notice re¬
ferred him to the Placement Officers in the Shipyard, and advised him
that
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"the reduction-in-force regulations require that you be
given an opportunity for reassignment within this activ¬
ity or at other naval activities within the locsil commu¬
ting area under certain conditions."
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Plaintiff was qualified by civil service for the position of Typewriter
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Repairman (JA 4, 34), and there was then available a position of Type-
writer Repairman in the Shipyard in which was employed a non-veteran
over whom plaintiff enjoyed retention preference under the regulations
of the Civil Service Commission (JA 24). |
At the time he received his notice, plaintiff was receiving $2.00 an
hour in the position of Puncher and Shearer, made up of a base rate of
$1. 82 an hour and 18 cents additional for night differential (JA 36). The
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range of rates for this position was from $1.75 to $1. $5 an hour (JA 16).
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The starting rate for the position of Typewriter Repairman was $1.80,
with no night work available (JA 35). The range of rates for this position
was from $1.80 to $2.03 or $2.10 an hour (JA 16, 39 J 40).
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Plaintiff was denied his request for reassignment or change to the
position of Typewriter Repairman, and was compelled under protest to
accept the position of Machinist Helper at the rate of $1. 65 an hour (JA
35, 36). He is presently so employed (JA 36). j
Plaintiff’s request was denied on the ground that such a reassign¬
ment or change would constitute a promotion, since the minimum and
maximum rates for Typewriter Repairman were greater than those for
the position of Puncher and Shearer, and that under the civil service regu¬
lations the Shipyard is not required to promote an employee (JA 16-17).
Appeals were unsuccessfully filed with the Regional Office of the
United States Civil Service Commission in Philadelphia, as well as with
the United States Civil Service Commission in Washington (JA 19-21,
22-23). |
A Complaint was then filed in the Court below seeking a declaratory
judgment of the plaintiffs employment rights and his reassignment to the
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position of Typewriter Repairman as of July 3, 1953, with all rights and
benefits from a continuity of services from that date to the date of judg¬
ment, including pay for his rank and position (JA 1-6).
Defendants filed an Answer denying that they had violated any statu¬
tory right of the plaintiff and averring M that to have reassigned the plain¬
tiff to said position (of Typewriter Repairman) would have constituted a
promotion to which plaintiff was not entitled" (JA 7).
Defendants then filed a Motion for Summary Judgment, which was
heard by Judge Pine of the Court below and dismissed (JA 12).
The case was called for trial on December 5, 1955, before Mc¬
Laughlin, J., and after evidence and oral argument was offered by both
sides, findings of fact and conclusions of law were made by the trial
judge in favor of the defendants (JA 25-27).
STATUTES AND REGULATIONS INVOLVED
Sections 12 and 14 of the Veterans Preference Act of 1944, c. 287,
Sec. 12 and 14, 58 Stat. 390, amended Aug. 4, 1947, c. 447, 61 Stat.
723, 5 U.S.C. 861, 863.
Section 12 .
"In any reduction in personnel in any civilian serv¬
ice of any Federal Agehcy, competing employees shall
be released in accordance with Civil Service Commission
regulations which shall give due effect to tenure of em¬
ployment, military preference, length of service, and
efficiency ratings: PROVIDED, That the length of time
spent in active service in the armed forces of the United
States of each such employee shall be credited in com¬
puting length of total service: PROVIDED FURTHER,
That preference employees whose efficiency ratings are
'good’ or better shall be retained in preference to all other
competing employees and that preference employees whose
efficiency ratings are below ’good’ shall be retained in
preference to competing nonpreference employees who
have equal or lower efficiency ratings: AND PROVIDED
FURTHER, That when any or all of the functions of any
agency are transferred to, or when any agency is re¬
placed by, some other agency, or agencies, all prefer¬
ence employees in the function or functions transferred
or in the agency which is replaced by some other agency
shall first be transferred to the replacing agency, or
agencies, for employment in positions for which they
are qualified, before such agency, or agencies shall
appoint additional employees from any other source for
such positions."
Section 14.
"No permanent or indefinite preference eligible,
who has completed a probationary or trial period em¬
ployed in the civil service, or in any establishment,
agency, bureau, administration, project, or depart¬
ment, hereinbefore referred to shall be discharged,
suspended for more than thirty days, furloughed with¬
out pay, reduced in rank or compensation, or debarred
for future appointment except for such cause as will
promote the efficiency of the service and for reasons
given in writing."
Section 20. 5 of the Retention Preference Regulations of the Civil
Service Commission, in effect in July, 1953, Title 5, Code of Federal
Regulations, Part 20 (1949 Ed. with Sup.), 17 Federal Register, pg.
11733 and 18 Federal Register 3085 (amending Section 20.5(b) (2)).
T t Section 20. 5 Actions .
(a) In general. Employees who cannot pe retained
in their positions because of a reduction in force will be
changed to continuing positions, separated or furloughed.
(b) Employees in positions in the competitive serv¬
ice. (1) No employee may be separated, or furloughed
for more than thirty days, or reduced in pay qr grade in
a reduction in force while a competing employee with
lower retention standing is retained in the same compe¬
titive level. (2) No employee in any subgroup of the
career group or the career conditional group who is
willing to accept a reasonable change in position may
be separated, furloughed for more than thirty days, or
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subjected to greater reduction in pay than necessary
under such reasonable change in position, if he is
qualified for a continuing position in another competi¬
tive level in his present competitive area in which an
employee with lower subgroup standing is retained, or
if he is qualified to go back to a continuing position
from which he was promoted (or to an essentially iden¬
tical position) in his present competitive area in which
an employee with lower retention standing is retained.
(c) .
(d) Reasonable change in position. Any change in
position under these regulations is reasonable if it is
made without reduction in grade or pay. If a reduction
in grade or pay cannot be avoided, any such change is
reasonable if made with the least reduction required
to conform with these regulations. Employees are not
required to be given options as to alternative changes
possible in any particular case. No agency shall be re¬
quired to fill a vacant position, or to promote any em¬
ployee or to transfer any employee to a different duty
station, and no agency shall be prohibited from taking
such administrative actions. No employee rendering
satisfactory service in a position shall be required to
be displaced by a competing employee who is not qual¬
ified for such position under the regulations in this part."
STATEMENT OF POINTS
1. Plaintiff's right as a veteran preference eligible to retention in
Federal employment is a broad one.
2. The Philadelphia Naval Shipyard was required in a reduction in
force to give plaintiff a change in position without reduction in pay, if at
all possible.
3. Plaintiff was not offered or given a reasonable change in position.
4. To have given the plaintiff the position for which he was qualified
would not have been a promotion.
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SUMMARY OF ARGUMENT
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1. Congress indicated by a long history of legislation culminating
in the Veterans Preference Act of 1944, that the veterans’ preference
to retention in Federal employment shall be a broad Sne and shall be so
construed. The decision of the Supreme Court of the United States in
Hilton v. Sullivan supports this statement.
2. Upon receiving his notice of reduction in force, plaintiff was en¬
titled to be reassigned to another position without reduction in pay, or if
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necessary, with the least reduction possible. Under the facts in the case
this was not done.
3. Plaintiff was not given a reasonable change in position when he
was reassigned to a position paying $1.65 an hour when there was then
available a position for which he was admittedly qualified which had a
starting rate of $1.80 an hour.
4. It is not a promotion to reassign an employee from one position
in which he is receiving $1.82 an hour basic pay, and $. 18 an hour for
night work, to another position with a starting rate of $1.80 an hour with¬
out night work where the range of rates, minimum to maximum, for the
former position was slightly less than the range of rates for the position
to which he is reassigned.
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ARGUMENT
1. Veterans Preference Should Be Broadly Applied
The right of veterans to be retained in employment in Federal serv¬
ice, where there is a reduction in the force of the Federal agency involved,
goes back to the late half of the nineteenth century. Both by Act of Con¬
gress and by Executive Order this right of preference has long existed.
More recently, by the Act of August 23, 1912, Congress provided among
other things, as follows:
"In the event of reduction being made in force in
any of the executive departments no honorably discharg¬
ed soldier or sailor whose record in said department is
rated good shall be discharged or dropped or redu ced in
rank or salary. " (5 U. S. C. A. 648)
The Veterans Preference Act was considered and the entire legis¬
lative history of veteran employment laws reviewed in the case of Hilton
v. Sullivan , 334 U.S. 323 (1948). Here the Supreme Court has indicated
the broad sweep of Congressional intent to retain veterans in employment
in reductions in force and not to reduce them in their pay.
In speaking of the purpose of Congress in passing the Act of 1944,
Justice Black in the Hilton case said (pg. ):
"The purpose of that Act’s sponsors and of Congress in
passing it appears to have been precisely the opposite -
to broaden rather than narrow the preference.
’The Senate Civil Service Committee was told by the
congressional sponsor of the measure that ’this bill takes
away no existing veterans’ preference, either by statute
or Executive order, but it does strengthen, broaden and
implement the veterans’ preference policy heretofore in
effect, ’ and that it would ’give legislative sanction to ex¬
isting veterans’ preference, to the rules and regulations
in the executive branch of the Government. . . ’ A mem¬
ber of the Civil Service Commission in explaining the
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bill to the Senate Committee called the proviso here in¬
volved the T heart of the section, * and stated that it 'was
substantially the same' as the 1912 Act, which as before
pointed out, provided for an absolute veterans retention
preference without regard to length of service. And in
explaining the Bill on the floor of the House, j the Sponsor
and active proponents of the measure explained it as
strengthening and broadening veterans' preferences
then embodied in statutes and executive orders."
While the provisions of the Act of August 23, 1^12, having to do with
the retention rights of veterans in Federal employment, were repealed
by the Performance Rating Act of 1950 (64 Stat. 1100), the strength and
meaning of that law were amplified and infused into the Act of 1944.
In Schweizer v. United States (U.S. Ct. Cl.), 121 Federal Sup. 928,
the Court said that the Act of 1944 took away no rights which veterans en¬
joyed under the Act of 1912; that the Act of 1944 was intended to enlarge
not restrict the rights of veterans.
See also Wettre v. Hague (C.C.A. Mass. 1948), 168 Fed. 2nd, 825;
Reynolds v. Lovett (1952), 91 U.S. App. D. C. 276, 201 Fed. 2nd 181.
2. Plaintiff's Reassignment Rights j
Section 12 of the Act of 1944 provides that in a reduction in force in
a Federal agency preference employees whose efficiency ratings are good
(now satisfactory) or better shall be retained in preference to all other
competing employees. |
Since the plaintiff was an honorably discharged disabled veteran with
a rating of satisfactory, and admittedly a preference eligible under the Act
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of 1944, he was entitled to be retained over all other competing non-veteran
employees.
Section 12 of the Act of 1944 provides for the promulgation by the
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Civil Service Commission of regulations governing the release of personnel
in a reduction in force in a Federal agency. The Commission has accordingly
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enacted Retention Preference Regulations in which it has included pro¬
visions intended to meet requirements of the Act.
Section 20. 5 of these Regulations in effect provides that where an
employee cannot be retained in his position, he will be changed to a con¬
tinuing position for which he is qualified in another competitive level in
his present competitive area in which an employee with lower subgroup
standing is retained.
The record indicates and the defendants admit that the plaintiff was
qualified by the Civil Service Commission for the position of Typewriter
Repairman.
The stipulation of counsel which was made part of the record (JA 24)
shows that there was a non-veteran employed in the position of Typewriter
Repairman.
Plaintiff was, therefore, entitled to be reassigned to the position of
Typewriter Repairman and to bump the non-veteran then employed in that
position.
3. Plaintiff Was Not Given A Reasonable
Change In Position _
As the plaintiff sees it, this is the only real issue in the case.
The first sentence of Section 20. 5(d) of the Retention Preference
Regulation says:
"Any change in position under these regulations is reason¬
able if it is made without reduction in grade or pay."
When the plaintiff received his notice dated July 3, 1953, from the
Philadelphia Naval Shipyard, he was informed that his position of Puncher
and Shearer would have to be eliminated and that his active service would
be terminated on August 7, 1953 (JA 13-14).
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Paragraph 4 of the notice said:
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"4. The reduction-in-force regulations require that
you be given an opportunity for reassignment within
this activity or at other naval activities within the lo¬
cal commuting area under certain conditions j, "
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As a Puncher and Shearer, plaintiff received $2;. 00 an hour on the
night shift, and this amount was made up of $1.82 hourly rate for the posi¬
tion and 18 cents for night shift differential (JA 36). }
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There was then available to him for reassignment within the same
naval activity the position of Typewriter Repairman for which the plain¬
tiff was qualified by the Civil Service Commission. There was then employ¬
ed in that position a non-veteran over whom the plaintiff admittedly had re¬
tention preference (JA 24). The position had a starting rate of $1.80 an
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hour and there was no night work available in that position (JA 35).
Instead, the plaintiff under protest was reassigned to the position
of Machinist Helper at the rate of $1. 65 an hour (JA 35, 36).
Thus, the plaintiff who had been receiving $2.00 an hour in the posi-
tion of Puncher and Shearer at the time he received his notice of separa¬
tion, was compelled to accept a reduction of thirty-five cents an hour, or
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$1. 65 an hour, in the position of Machinist Helper, whhn there was avail-
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able to him a position in the same naval activity, for which he was admit¬
tedly qualified which would have paid $1.80 an hour, or a reduction of only
20 cents an hour.
This action, then, on the part of the Philadelphia Naval Shipyard was
a violation of the Retention Preference Regulations, and more especially
Section 20. 5(d), supra, because
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(a) plaintiff was obliged to accept a reassignment or change
in position at a substantial reduction in pay;
(b) plaintiff was denied a change in position at a slight reduc¬
tion in pay;
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(c) the change in position offered or given to the plaintiff
was, therefore, not a reasonable one.
Aside from the reassignment to the position of Machinist Helper
within the Shipyard, THERE IS NOTHING IN THE ENTIRE RECORD TO
INDICATE THAT ANY ATTEMPT WAS MADE BY THIS AGENCY TO
MAKE AVAILABLE TO THE PLAINTIFF
a reassignment or change to a continuing position
without reduction in grade or pay, or with the least
reduction possible
in any of the many other naval activities in plaintiff 1 s
commuting area.
The notice which plaintiff received indicated that his right to re¬
assignment extended to the commuting area in which he was employed.
Plaintiff testified about his conversation with the Placement Officer
at the Shipyard (JA 35):
M * * * and he said, ’Well, that is the only job if you want
it. Time is running short. You have to accept this job
before a certain date 1 - I think it was in August some¬
time - T or else we will have no job for you."
And again (JA 35):
Tt * * * He said ’That is it. You either take this job or
we don’t have any other one for you. ”
The above testimony of the plaintiff is uncontradicted. The Place¬
ment Officer at the Philadelphia Naval Shipyard was not called to testify
by the defendants. In fact, the only testimony offered by the defendants
was an employee of the Industrial Relations Office, in Washington, who,
after reading over the defendants’ file in the case, testified over objec¬
tion from plaintiff’s counsel concerning other phases of the case having
to do with the definition of the word ’’promotion” and offered his opinion
whether it would have been a promotion for the agency to have reassigned
plaintiff to the position of Typewriter Repairman (R. 57-69; JA 37-39).
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4. To Have Given Plaintiff The Position He Sought
Would Not Have Been A Promotion _
The position taken by the defendants at the time they filed their mo¬
tion to dismiss the action in the court below was twofold, namely, (a) that
plaintiff was not entitled to a reassignment or change in position into anoth¬
er competitive level, and (b) that the reassignment or change in position
sought by the plaintiff would amount to a promotion, and hence the Phila¬
delphia Naval Shipyard could not be compelled to give such a change in
position under the provisions of Section 20. 5(d) of the Retention Prefer¬
ence Regulations. j
The first position was abandoned by the defendants after their motion
to dismiss was denied, apparently because they for the first time realized
that Section 20. 5(b) (2) of the Retention Preference Regulations, in effect
at the time plaintiff received his notice of separation' specifically provided
for a change in position to "another competitive level".
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At the time the case went to trial the defendants relied solely on the
ground that to give the plaintiff the position of Typewriter Repairman would
amount to giving him a promotion, and that under Section 20.5(d) an agency
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could not be compelled to promote an employee (R. 6).
The reasoning of the defendants in claiming that the change in posi¬
tion would have amounted to a promotion is this: the grange of rates for
the position of Puncher and Shearer, in which plaintiff was employed when
he received his notice of separation, was from minimum to maximum,
$1.75 to $1.95 an hour, exclusive of the 18 cents an hour night differen¬
tial; that night differeitial was not a part of basic pay and cannot be con¬
sidered; the range of rates for the position of Typewriter Repairman was,
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from minimum to maximum, $1.80 to $2.03 or $2.10 hn hour; therefore,
since the range of rates for the position sought by the plaintiff was slight-
ly higher in the minimum and maximum than the range! of rates for the
position which plaintiff held at the time he received his notice of
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separation, it would have amounted to a promotion, and this the Phila¬
delphia Naval Shipyard could not be compelled to give the plaintiff under
the provisions of Section 20. 5(d) of the Retention Preference Regulations.
To substantiate its position, the defendants offered in evidence at
the trial a definition of the word ’’promotion” as contained in the Federal
Personnel Manual, Rl-10:
”A promotion is the advancement of an employee while
continuously employed to another position with a higher
rate of compensation than his last previous rate. ”
At the same time, it was shown through defendants* witness (R. 67,
68) that the definition of the word ’’promotion” had been ’’subject to revi¬
sion and change throughout the past ten years at least." In fact, plaintiff
offered in evidence as Exhibit 1, a later definition, dated January 23, 1955,
contained in the Federal Personnel Manual Rl-11 and Rl-12, which is dif¬
ferent in content from the definition quoted above (JA 32-33).
Certainly the state of the record would hardly permit of any reliance
on the definition of the word promotion as set forth in the Federal Person¬
nel Manual.
During discussion with the lower Court during the course of the trial
the learned trial judge correctly stated that the matter of a promotion should
be given ad hoc consideration. However, at the conclusion of the trial the
trial judge decided the case not on what plaintiff would then have received,
but on what he could have received.
The fact of the matter is the plaintiff would have received less money
in pay if he had been given the promotion of Typewriter Repairman, even
if we exclude the item of night differential.
The fact of the matter is that the basic rate of pay which plaintiff
was receiving at the time of his separation was greater than the starting
basic rate of pay which he would have received for the position of Type¬
writer Repairman.
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While counsel for the defendants stated to the Court that the plain¬
tiff would have been paid more than the starting rate of pay for the posi¬
tion of Typewriter Repairman, there is absolutely nothing in the record
to substantiate such a statement, and on the contrary, the testimony of
the plaintiff and our common knowledge of employment practice point to
the conclusion that the plaintiff would have been paid the starting rate
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for the position.
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The defendants contended at the trial that night differential was ex¬
cluded in determining whether one position is a promotion over another.
They relied on the definition of the word "promotion’*. However, as al¬
ready pointed out, this definition has little weight because of its revision
and change during the past ten years. j
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On the other hand, plaintiff testified that deductions are made from
his night pay for retirement purposes. In addition, plaintiff was regularly
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employed at night work for more than a year, so that the elimination of
the night work differential of 18 cents an hour was to him a reduction in
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pay.
However, whether or not we include the night differential, the rate
of pay which plaintiff was receiving was greater than the rate of pay which
he would have received in the position of Typewriter Repairman and hence
such a reassignment or change of position was not a promotion.
The real test is whether what the plaintiff was then receiving was
greater or less than what the plaintiff would then have received in the re¬
assignment or change in position.
The defendants* position is entirely based on the range of rates for
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the respective positions. However, the plaintiff would have received less
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money per hour had he been given the position of Typewriter Repairman.
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Whether he would ever have received more money in the position of Type¬
writer Repairman than he would have received in the position of Puncher
and Shearer, is entirely a matter of conjecture. Whether he would ever
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have received the maximum rate for either of the positions is likewise
dependent upon many factors, such as his continued health (plaintiff is
a disabled veteran), his competence, a further reduction in force, a re¬
classification of position, etc.
It is submitted that the only realistic determination of the question
of promotion is an ad hoc consideration based on what plaintiff was then
receiving as compared with what the plaintiff would then have received in
his change of position.
CONCLUSION
The action of the Philadelphia Naval Shipyard in compelling plain¬
tiff to accept a change in position to the position of Machinist Helper at
$1.65 an hour was under all the facts a violation of his rights under the
Veterans Preference Act and the Retention Preference Regulations pro¬
mulgated to carry out the provisions of the Act.
It is respectfully submitted that the judgment of the Court below be
reversed and that judgment be entered against the defendants ordering that
plaintiff be restored and assigned to the position of Typewriter Repairman
at the Philadelphia Naval Shipyard as of July 3, 1953, with all rights and
benefits from a continuity of service from that date to date of judgment,
including pay for his rank and position.
ALBERT J. BADER
908 Finance Building
Philadelphia 2, Pennsylvania
SAMUEL I. SHERWOOD
602; Columbian Building
Washington 1, D. C.
Attorneys for Appellant
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INDEX
PLEADINGS AND DOCUMENTARY EVIDENCE:
Suit for a Declaratory Judgment having the purpose of fixing
and determining the rights of the Plaintiff to employment by
the United States and for a Preliminary Mandatory Injunction
to enforce such rights and for such other relief as to the court
may appear equitable and just.
Answer
Report and Opinion of Commissioner of Veterans Cases on Prelim¬
inary Questions of Law raised in Defendants' Answer
Motion for Summary Judgment.
Official Letters and Documents filed with Commission under Part
20 of the Federal Personnel Manual.
Letter of July 3, 1953 re: notice of separation because of
reduction in force, from Philadelphia Naval Shipyard
to Plaintiff.
Letter of July 13, 1953 re: Appeal under Section 14 of
Veterans' Preference Act - George Paul Kinslow, from
George P. Kinslow to Third U. S. Civil Service Region
Letter of August 17, 1953 re: request for oral hearing, from
Third U. S. Civil Service Region to Plaintiff .
Letter of August 28, 1953 re: decision to affirm agency action
as proper under the regulations, from Third U. S. Civil Service
Region to Plaintiff .
Letter of November 10, 1953 re: appeal of George P. Kinslow
from 1.1. Azimow to Third U. S. Civil Service Region
Letter of November 18, 1953 re: decision to affirm agency
action as proper under the regulations, from Third United
States Civil Service Region, to Plaintiff.
Letter of November 24, 1953 re: filing of Appeal from decision
rendered by Third United States Civil Service Region, from
1.1. Azimow to Commissioners U. S. Civil Service Commis¬
sion in Washington, D. C.
Letter of December 21, 1953 re: decision of Commissioners
U.S. Civil Service Commission in Washington, D.C. to
affirm prior decision, from Chairman to Plaintiff’s Aty.
Stipulation .
Findings of Fact and Conclusions of Law.
Request for Finding of Fact and Conclusions of Law.
Record
Page
A ppendix
Page
1
!
!
JOINT APPENDIX
_
PLEADINGS AND DOCUMENTARY EVIDENCE
77
[ Filed Sept.
GEORGE P.
-vs-
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
i
3, 1954]
KINSLOW,
Plaintiff
CIVIL ACTION NO. 3765-’ 54
CHARLES E. WILSON
Secretary of National Defense
Washington, D.C.
CHARLES SPARKS THOMAS
Secretary of the Navy
Washington, D.C.
PHILIP YOUNG
Chairman of the United States
Civil Service Commission
Washington, D.C.
GEORGE M. MOORE
United States Civil Service
Commissioner
FREDERICK J. LAWTON !
United States Civil Service
Commissioner
Washington, D.C.,
Defendants I
SUIT FOR A DECLARATORY JUDGMENT HAVING THE PUR¬
POSE OF FIXING AND DETERMINING THE RIGHTS OF THE
PLAINTIFF TO EMPLOYMENT BY THE UNITED STATES AND
FOR A PRELIMINARY MANDATORY INJUNCTION TO ENFORCE
i
SUCH RIGHTS AND FOR SUCH OTHER RELIEF AS TO THE COURT
MAY APPEAR EQUITABLE AND JUST. i
78 The Plaintiff, for his cause of action, complains of the above men¬
tioned Defendants and alleges as follows:
1. The Plaintiff is a disabled, honorably discharged soldier of the
United States and proper proof of disability and war service appears in the
2
files of the Philadelphia Naval Shipyard Agency and the Third Region United
States Civil Service.
2. Plaintiff is a preference eligible within the meaning of prefer¬
ence eligible as set forth in Section 2 of the Veterans Preference Act of
June 27th, 1944, as amended.
3. That this cause of action arises under certain statutes and execu¬
tive orders of the President of the United States, giving and granting to
honorably discharged soldiers, sailors and marines in civilian employ¬
ment in governmental agencies, bureaus, projects and departments,
certain preference rights to employment and retention in employment in
their positions and grades.
4. This action is brought for the violation by the Defendants of the
following statutory provisions concerning the rights of veterans in federal
civil service employment.
The Act of August 23, 1912 c. 350 (Section 4 (Section 648, Title 5,
United States Code:)
M In the event of reduction being made in force in any of the
executive departments no honorably discharged soldier or sailor
whose record in said department is rated good shall be discharged
or dropped or reduced in rank or salary. "
The Veterans Preference Actof 1944, c. 287 (Section 12, (Section
861, Title 5, United States Code):
79 "That preference employees whose efficiency ratings are "Good"
or better shall be retained in preference to all other competent em¬
ployees and that preference employees whose efficiency ratings
are below T good T shall be retained in preference to competing non-
preference employees who have equal or lower ratings.”
The Veterans Preference Act of 1944, c. 287, section 14, as amend¬
ed by the Act of August 4, 1947, c. 447 (Section 863, Title 5, United States
Code:)
,f No permanent or indefinite preference eligible who has com¬
pleted a probationary or trial period employed in the civil service,
or in any establishment, agency, bureau, administration, project,
or department, hereinbefore referred to shall be discharged, sus¬
pended for more than thirty days, furloughed without pay, reduced
in rank or compensation, or debarred for future appointment except
for such cause as will promote the efficiency of the service and for
reasons given in writing, and the person whose discharge, suspen-
sion for more than thirty days, furlough without pay, or reduction in
rank or compensation is sought shall have at least thirty days' ad¬
vance written notice (except where there is reasonable cause to be¬
lieve the employee to be guilty of a crime for which a sentence of
imprisonment can be imposed), stating any and all reasons, spe¬
cifically and in detail, for any such proposed action; such preference
eligible shall be allowed a reasonable time for answering the same
personally and in writing, and for furnishing affidavits in support
of such answer, and shall have the right to appeal to the Civil Serv¬
ice Commission from an adverse decision of the administrative offi-
cer so acting, such appeal to be made in writing within a reasonable
length of time after the date of receipt of notice of such adverse de-
i
cision."
5. The Defendant, CHARLES E. WILSON, is the duly appointed,
acting and qualified, Secretary of National Defense and in such capacity
has full control and supervision over the activities of the Secretary of the
i
Navy.
6. The Defendant, CHARLES SPARKS THOMAS! is the duly appoint¬
ed, acting and qualified, Secretary of the Navy, and in such capacity has
full control over all of the personnel employed by the United States in the
Navy Department, subject to the orders and directions of the Defen-
i
dant, Charles E. Wilson, Secretary of National Defense, and the statutes
and executive orders and regulations applicable to this office: and among his
other duties is the control and supervision of personnel employed in the
Philadelphia Naval Shipyard.
7. The Defendant, PHILIP YOUNG, is the duly appointed, acting
and qualified Chairman of the United States Civil Service Commission.
8. The Defendant, GEORGE M. MOORE, is a duly appointed, acting
4
and qualified member of the United States Civil Service Commission.
9. The Defendant, FREDERICK J. LAWTON, is a duly appointed,
acting and qualified member of the United States Civil Service Commis¬
sion.
10. On July 3rd, 1953, Plaintiff received a notice of separation
because of a reduction in force from the Commander of the Philadelphia
Naval Shipyard. Such notice is attached hereto as Exhibit "A" and is made
a part of this Complaint.
11. At the time the Plaintiff received the notice of separation due
to reduction in force, the Plaintiff was fully qualified to perform the work
and duties of an Office Machine (typewriter) repairman. Plaintiff’s quali¬
fication for this position appears as a matter of record on the files of the
Philadelphia Naval Shipyard and in the Third Region, United States Civil
Service.
12. At the time that the Plaintiff received his notice of separation
due to reduction in force (Exhibit "A"), there was available at the Phila¬
delphia Naval Shipyard, the continuing position of Office Machine (type¬
writer) Repairman. These positions of Office Machine (typewriter) Re-
81 pairman were then being occupied by non-veterans in a lower reten¬
tion sub-group (IIB and IIIA).
13. The Defendants' actions in failing to re-assign the Plaintiff and
making available to him the reasonable offer of re-assignment to the po¬
sition of Office Machine (typewriter) Repairman, constitutes a violation
of the reduction in force regulations cited hereinabove in Paragraph two
of this Complaint and also violates the regulations preventing the reduc¬
tion in rank, and compensation of veterans, without cause.
14. The Defendants were required to affect Plaintiffs re-assignment
to the position of Office Machine (typewriter) Repairman, in accordance
with the applicable rules and regulations and their failure to do so consti¬
tutes arbitrary, capricious and unlawful and illegal acts and is contrary
to existing statutes and executive orders and regulations promulgated there¬
under.
15. Plaintiff alleges that he appealed to the appropriate officers of
82
the Philadelphia Naval Shipyard for re-assignment to the position of Of¬
fice Machine (typewriter) Repairman but was denied suqh re-assignment
and at such time there was in full force and effect a lawful regulation
promulgated by the United States Civil Service Commission making such
re-assignment a duty of the Philadelphia Naval Shipyard Agency.
16. The Plaintiff exercised his right to appeal under the Veterans
Preference Act of June 27th, 1944 and appealed to the United States Civil
Service Commission, Third Region. Thereafter, Plaintiff appealed to
such of the Defendants as constitute the United States Civil Service Com¬
mission. Plaintiff's appeal was denied. Therefore, Plaintiff has
fully and finally exhausted all of his administrative rights of appeal.
17. The Plaintiff alleges that such of the Defendants as constitute
the United States Civil Service Commission could have Accomplished Plain¬
tiffs re-assignment to the position of Office Machine (typewriter) Repair¬
man in lieu of separation so that Defendants unwillingness to do so indicates
their failure to give full force and effect to the spirit add intent as well as
the letter of the regulations providing preference to veterans in reduction
in force situations. Such actions are arbitrary and capricious and against
i
the interests and expressions of existing statutes and regulations so that
j
their decision in the matter should be set aside and made null and void.
18. The Plaintiff further alleges that it is the plain, ministerial
and administrative duty of each of the Defendants to follow and apply ap¬
plicable regulations cited hereinabove pertinent to reduction in force sit¬
uations so as to give full force and effect to the intent and letter of the regu-
lation and thus forthwith arrange for the restoration of the Plaintiff to die
rightful position of Office Machine (typewriter) Repairman in the Philadel-
phia Naval Shipyard, together with all rights, benefits land privileges that
may or might have accrued by reason of his wrongful Reparation as of
July 3rd, 1953.
19. That the Plaintiff, being without adequate remedy at law, save
and except as relief may be granted by this Court, brings this suit and
requests the Court to enter a declaratory judgment fixing and determining
his rights as a veteran preference eligible under the statutes of the United
83
6
States, the regulations and the executive orders of the President of the
United States as alleged in Paragraph Two of this Complaint. That
the Plaintiff has no speedy adequate remedy at law. That the Court
in the interest of right and justice should issue a preliminary mandatory
injunction directing and requiring the said Defendants to forthwith restore
and assign the Plaintiff to the position of Office Machine (typewriter) Re¬
pairman in the Philadelphia Naval Shipyard.
WHEREFORE, the Plaintiff prays:
1. That due process issue directing and commanding the said De¬
fendants and each of them to appear and answer this Bill of Complaint.
2. That a preliminary mandatory injunction issue directed to the
Defendants, Charles E. Wilson, as Secretary of the National Defense, and
Charles Sparks Thomas, as Secretary of the Navy, commanding them and
each of them to restore and to assign the Plaintiff to the position of Office
Machine (typewriter) Repairman in the Philadelphia Naval Shipyard forth¬
with, and that upon a final hearing that the injunction issued be made per¬
manent.
3. That the Court enter a declaratory judgment against all of the
said Defendants, fixing and determining the rights of the Plaintiff as a vet¬
eran preference eligible in governmental employment as of July 3rd, 1953,
and that the judgment decree and declare that the Plaintiff be restored and
be assigned to the position of Office Machine (typewriter) Repairman in the
Philadelphia Naval Shipyard, as of July 3rd, 1953, and that the Plaintiff
have all of the rights, benefits and privileges flowing from a continuity of
services from July 3rd, 1953 until the date of judgment, including pay for
his rank and position.
84 4. That the Plaintiff have such other and further relief as to the
Court may appear to be equitable and just in the premises.
/S/ I. I. AZIMOW, Esq. .
20 South 15th Street
Philadelphia 2, Pa.
/S/ S. I. SHERWOOD
602 Columbian Bldg.
Washington 1, D.C.
Attorneys for Plaintiff
7
i
85 [Filed Dec. 22, 1954]
ANSWER
-— —-
First Defense
The complaint fails to state a claim upon which relief may be granted.
Second defense
Answering specifically the allegations contained in the numbered par¬
agraphs of the complaint, defendants aver:
1. and 2. Admitted.
3. Defendant is not required to answer the allegations contained in
paragraph 3 of the complaint.
4. Defendants are not required to answer the allegations of juris¬
diction contained in paragraph 4 of the complaint. Further answering,
defendants deny any violation of the statutory provisions concerning the
rights of plaintiff.
5. through 11. Admitted.
12. Denied.
j
13. Denied. Further answering it is averred that plaintiff did not
occupy the position of Office Machine Repairman and that to have reassign¬
ed plaintiff to said position would have constituted a promotion to which
plaintiff was not entitled.
14. Denied.
15. Defendants admit that plaintiff appealed to the appropriate offi¬
cers of the Philadelphia Naval Shipyard for reassignment. Each and every
other allegation contained in paragraph 15 is denied.
86 16. Admitted.
17., 18. and 19. Denied.
WHEREFORE, defendants having fully answered the allegations con-
tained in the complaint, demand judgment together with the costs of this
suit.
/S/ LEO A. ROVER, United States Attorney
/S/ OLIVER GASCH, Assistant United States Atty.
/S/ FRANK H. STRICKLER, Assistant United
States Atty.
/S/ JOSEPH A. RAFFERTY,! JR- > Assistant
United States Atty.
(Certificate of
Service)
8
87 l Filed June 6, 1955]
REPORT AND OPINION OF COMMISSIONER OF
VETERANS CASES ON PRELIMINARY QUESTIONS
OF LAW RAISED IN DEFENDANTS 1 ANSWER
Plaintiff, incumbent of position of Puncher and Shearer in the Phila¬
delphia Naval Shipyard on July 3, 1953, alleges that he was unlawfully
separated therefrom in a reduction-in-force action in the Shipyard, ef¬
fective August 7, 1953, in that he was denied right of reassignment to
position of Typewriter Repairman and given position with lesser pay, over
his objection, at a time when others were retained in competitive level
position with lesser retention register credits, including one non-veteran
employee. His claim of entitlement to relief would, if granted, call for
a declaratory judgment fixing and determining his employee rights, with
restoration, as of date of August 7, 1953.
The defendants assert that there is neither statute nor regulation ex¬
isting which makes it the duty of the Shipyard to reassign plaintiff to a
position which the agency has determined is not in the same competitive
level and which, in fact, would require a promotion of plaintiff to such
position of higher grade and pay, as Typewriter Repairman. They deny
that such demotion was arbitrary or capricious, as plaintiff was not en¬
titled to such position and no regulation exists making it ministerial duty
to "promote” plaintiff in any reassignment in a reduction-in-force action in
the Shipyard.
88 The defendants admit that plaintiff is a ten-point disabled preference
eligible, whose qualification for position of Typewriter Repairman is on
file with the Shipyard and the Commission, but that the Shipyard had deter¬
mined that plaintiff was not eligible for a promotion to such position after
full consideration because (1) there was not a vacancy therein and (2)
that, although Shipyard had discretion to give position to plaintiff in lieu
of separation in reduction in force, it had determined not to exercise this
discretion.
The Commission's Board of Appeals and Review, December 21, 1953,
in its decision constituting plaintiff's exhaustion of administrative remedy,
held that:
"The only issue in the appeal is whether the Commission should
have held the action taken in the reduction in force to be improper
in view of the fact that a lower subgroup preference employee was
retained in a position as Typewriter Repairman for which Mr. Kins-
low is qualified. The position of Typewriter Repairman carries
slightly higher pay rates than the position of Puncher and Shearer held
by Mr. Kinslow.
j
"The Third Regional Office correctly cited regulations 20.5(d), Page
I
Z1-287 of the Federal Personnel Manual which provides that although
the agency could have promoted Mr. Kinslow to a higher grade po¬
sition in lieu of separation in a reduction in force! the Civil Service
Commission did not require it to do so. The agepcy action was * * *
I
in compliance with the Commissions regulations * * *."
In the reduction in force in the instant case, the position of Typewriter
Repariman, in which plaintiff is claiming tT bumping" rights over three em¬
ployees therein as being in lower subgroup than he, wa^ not listed as a
competitive level of positions affected by the particular! reduction-in-force
i
order. Under its own regulations, 5 C. F. R. 20.4(b), the agency has the
duty to determine within the competitive area all competitive levels of po¬
sitions affected by the particular reduction-in-force order. This is not an
absolute discretion in the agency, but must be made on a good faith basis
in line with the Commissions regulation, 5 C. F.R. 20.2(f). The agency
is therein advised that "competitive level" means all similar positions
within a competitive area in which employees could be Readily interchange -
able without undue interruption to the work program. Generally such posi-
i
tions will be in the same grade or occupational level, but this is not neces¬
sary, if the other tests are met.
The Government contends, in the recommended decision of the Re-
gional Director, that:
"According to the definition of the word promotion as it is used in
the Federal Service, and which appears on page RI-10 of the Federal
Personnel Manual, a promotion is the advancement of an employee
while continuously employed to another position with a higher rate
10
of compensation than his last previous rate. Since the highest com¬
pensation rate of your previous position was $. 15 an hour less than
the top rate for Typewrite!* Repairman, your reassignment to the
higher paying position would clearly, according to the standard defin¬
ition, constitute a promotion. We wish to point out, once again, that
an agency 1 s authority to promote a qualified employee is constant,
but that the Civil Service Commission cannot require that any employ¬
ee be given a promotion. "
It is true that the Veterans Preference Act of 1944, as amended, is
silent as to promotions, as defendants contend, although addressing itself
directly to every other type of personnel transaction. But it is worthy of
note that, although provisions are not directed to personnel matters, in
Title IV of the Servicemen T s Readjustment Act of 1944, as amended, 38
U. S. C. 695-695(f), Congress declared as its intent and purpose that poli¬
cies should be promulgated and administered so as to provide for the max ¬
imum of job opportunity in the field of gainful employment .
It is clear that the effect of the Commission's regulation, 5 C. F. R.
20.4(a), is to obligate the agency in the instant case to name the position
of Typewriter Repairman in the same competitive level in this reduction-
in-force action and list the retention standings of the persons by groups
and credits if the positions are filled by employees who could be readily
interchangeable, and the like, as set forth in 5 C. F. R. 20.2(f), supra.
Opinion of the Commissioner
The case of Fass v. Gray , (1952) 91 U.S. App. D. C. 28, 197 F. 2d
587, is judicially controlling authority in the case at bar that veterans
*
have no assignment rights, under the provisions of 5 U.S.C. 861, which
are not limited to a "competitive" group. It was there held that regulations,
limiting the competitive group to those employees fully qualified for the
position to which reassignment is sought, and to those within the "local
commuting area", are valid.
Plaintiff contends that the regulation, 5 C. F.R. 20. 5(b) (2) (1953)
(Supp.), commands the agency to reassign him to position of Typewriter
Repairman where it pertinent ly states:
11
91
"No employee * * * may be * * * subjected to greater reduction in
pay than necessary under such reasonable change in position, if he
is qualified for a continuing position in another Competitive level
in his present competitive area in which an employee with lower
subgroup standing is retained * * * ".
Plaintiff’s contention would mean that the above quoted words are sufficient
to bring his demotion within the different "competitive level" of the position,
j
Typewriter Repairman, regardless of whether it be a higher "competitive
level" than his former position, or not, to which he thereby is given reas¬
signment rights as qualified employee with veteran preference in a reduc¬
tion-in-force action.
Plaintiff has not shown that, although it is conceded that he is quali¬
fied, the position of Typewriter Repairman is a similar position within the
competitive area in which employees could be readily interchanged without
undue interruption to the work program at the Shipyard. The record shows
that the grade and pay are somewhat higher on the hourly basis. The defen¬
dants maintain that the difference in pay is clearly indicative that positions
are not in the same competitive level and that such higher grade and pay
are ones to which plaintiff could be assigned only through the discretion
of the agency because it would require a promotion to do same. This the
agency declines to do because there is no vacancy therein, and if there
were one, it is in its discretion to fill it or not.
The Commission admits that the agency could give the sought-after
position to the plaintiff, but that it cannot require the agency to make such
reassignment. The value of preference to eligible civil service career
employees should amount to the necessary sufficient weight to tip the scales
of indifference in executive heads when the spirit and intent of Congress in
enacting such preferences is being violated. Plaintiff is qualified for the
position. Plaintiff is a service-connected 10% disabled veteran, entitled
to "bump" three employees in that position as they have lower retention
standings, if positions were considered in same competitive level.
The pay status of positions differs but slightly. If position be a promotion
now open, plaintiff, admittedly qualified, should be given, in the agency
full consideration, credit for waiver of physical requirements, experience
gained in military service applicable to this position, point prefer ence,
and waiver of certain educational requirements. The agency asserts
it has given plaintiff such change in position with the least reduction in
grade and pay as can be found, but that the position he seeks is not for
him, with regrets.
I think that the agency action is within the requirements of the regu¬
lations, although with every ounce of sentiment for career veteran wrung
therefrom, and not arbitrary or capricious.
CONCLUSION
I recommend that the preliminary question of law raised by the
answer of defendants as to whether allegations fail to state a claim upon
which relief can be granted be resolved in favor of the defendants.
Respectfully submitted,
/S/ John H. Sullivan
Commissioner of Veterans Cases
Copies sent to:
S.I. Sherwood, Esquire Joseph A. Rafferty, Jr., Esquire
Attorney for Plaintiff Asst - D ' S * Attorney
Attorney for Defendants
[ Filed July 25, 1955]
MOTION FOR SUMMARY JUDGMENT
Now come the defendants by their attorney, the United States Attor¬
ney, and move this Honorable Court for a summary judgment on the fol¬
lowing grounds:
1. There are no material issues of fact and defendants are entitled
to judgment as a matter of law.
2. Defendants Exhibit 1 attached hereto and made a part hereof.
/S/ LEO A. ROVER,
United States Attorney
/S/ OLIVER GASCH
Ass't United States A tty.
/S/ FRANK !H. STRICKLER
Ass't United States A tty.
/S/ JOSEPH A. RAFFERTY, JR.
Ass't United States A tty.
(CERTIFICATE OF SERVICE)
United States Civil Service Commission
Washington 25, D. C.
I, William C. Hull, Executive Assistant to the Commissioners,
United States Civil Service Commission, certify that the documents at¬
tached hereto relate to the appeal of George P. Kinslow, filed with the
Commission under Part 20 of the Federal Personnel Manual, and are
true copies of official documents, under my custody and control.
/S/ WILLIAM C. HULL
January 10, 1955
Philadelphia Naval Shipyard
Naval Base
Philadelphia 12, Pa. j
Date: 3 July 1953
From: Commander, Philadelphia Naval Shipyard
i
To: George P. Kinslow, Puncher and Shearer, Chec^ No. 13403-11
Retention Sub-group n-A Retention Credits 4.
Via: Master Shipfitter
Subj: Notice of separation because of reduction in force.
1. Because of lack of work the Philadelphia Naval Shipyard is forced
to reduce staff. After pareful review of the operating Situation, it has been
determined that positions in your competitive level will have to be elimi¬
nated. As a result of this determination, we find that your active service
14
must be terminated at the close of business on 7 August 1953 and you will
be carried on the rolls until 7 August 1953.
2. Placement Officers in Room 1, Building 698, will make the regu¬
lations relating to reduction in force available to you and give you an op¬
portunity, if you wish to examine the retention records which have a bear¬
ing on the action in your case. If after such inspection you feel that there
has been a violation of your rights under these regulations, you have the
right to appeal in writing to the Director, Third U.S. Civil Service Region,
Customhouse, Second and Chestnut Streets, Philadelphia 6, Pa. This ap¬
peal must be made within 10 days of receipt of this notice and state rea¬
sons for believing the action to be improper. The Placement Officers are
also available to give you information about your final salary check,
lump-sum payment, appeal procedure, and retirement benefits or refunds.
3. The Placement Officers will give you all available information
concerning employment in private industry and in other Federal agencies,
and information regarding the exercise of reemployment rights if you have
such rights.
4. The reduction-in-force regulations require that you be given an
opportunity for reassignment within this activity or at other naval activities
\
within the local commuting area under certain conditions.
5. As an employee in retention Group n, who has completed proba¬
tion your name will be placed on a reemployment Priority List for a period
of one year from date of this notice in the event you are not reassigned in
lieu of separation, and during that period you will be considered for all
positions which may be available and for which you are qualified, subject
to restrictions specified by the Civil Service Commission for the filling
of positions.
6. This reduction-in-force notice should not be considered as re¬
flecting on your service or conduct. It is occasioned solely by the reasons
set forth in paragraph one. This notice may be used in contacts which you
may make with regard to other possible employments.
IRD 173-38
Groups I, II
3553-400
P. W. HAAS, JR.
By W. A UTLEY, by direction
95 [Stamped "Rec'd 2nd Mail, July 15, 195#]
July 13, 1953
Regional Director of the
Third U.S. Civil Service Region
2nd and Chestnut Sts.
Philadelphia, Pa.
Re: Appeal under Section 14 of Veterans' Preference Act -
George Paul Kinslow
Dear Sir:
I wish to execute my right of appeal as set forth in Paragraph 2 of
letter dated July 3, 1953, Philadelphia Naval Shipyard; subject: notice
of separation because of reduction in force.
I feel that my rights have been violated in that I have been certified
as being a qualified typewriter office machine repairman. I submit here¬
with a photostatic copy of such certification. The register at the Phila¬
delphia Naval Shipyard will reveal that there are positions of typewriter
machine repairman held by persons in group 2B and in group 3A.
I
Because of my qualificat ions as a typewriter machine repairman,
I believe that I would be reassigned to such a position. | I trust that you
will concede that I should not be denied this reassignment even though
it may be a slight increase in pay. In addition to the photostat depicting
my qualification as a typewriter machine repairman, \ am also sending
a copy of the reduction in force notice from the Agency and also proof that
I am an honorable discharged ten point veteran.
I plead that you intercede in this matter and compel the Agency to
follow the proper rules and regulations as is applicable to veterans in a
reduction in force situation. I further desire a personal hearing, and at
that time I will be represented by an attorney which I have retained to as¬
sist me in correcting this injustice.
Very truly
/S/ George P. Kinslow
Encls.
16
96 United States Civil Service Commission
Third United States Civil Service Region
Comprising Pennsylvania and Delaware
Office of the Director, Philadelphia, Pa.
August 17, 1953
PERSONAL AND CONFIDENTIAL
Mr. George P. Kinslow
3420 Reach Street
Philadelphia, Penna.
Dear Mr. Kinslow:
This is to inform you that we have completed the necessary investi¬
gation of the facts in connection with the reduction in force appeal you filed
with this office.
You state that your rights have been violated in that you have not
been offered reassignment to the position of Typewriter Repairman. Our
inquiry shows that the pay:ranjge for Puncher and Shearer positions is from
$1.75 to $1. 95 per hour while the rate of pay for Typewriter Repairman
positions ranges from $1.80 to $2.10 per hour. Since the salary schedule
for Typewriter Repairman positions is higher than the schedule for Puncher
and Shearer positions, to reassign you to the higher paying type of work
would, under Civil Service Regulations, constitute a promotion. While an
agency f s authority to promote an employee is constant, the Retention Pref¬
erence Regulations do not require an agency to offer a promotion to any
employee. If an agency makes a reasonable offer of reassignment during
a reduction in force, that is, an offer which results in the least reduction
in grade or pay possible under the circumstances, it has fulfilled its regu¬
latory obligations.
An appeal from a reduction in force action must be decided primarily
upon the basis of whether or not the Retention Preference Regulations have
been violated. Our investigation of the facts does not show that the Philadel¬
phia Naval Shipyard violated any of these regulations in not promoting you
to the position of Typewriter Repairman. We feel that your request for an
oral hearing in your case may have been made at a time when you were not
fully aware of the regulations and their effect on your appeal. Consequently,
I*
y •
97
98
17
we ask that you reconsider that request in terms of whether an oral hear¬
ing would, regardless of the information at hand, show that the Retention
Preference Regulations have in fact been violated. If, after such recon¬
sideration, you still desire a hearing, please advise this office by August
25, 1953, indicating the basis for the renewal of your request.
If you do not desire a hearing under the circumstances, we would
appreciate your notifying us promptly to that effect. If we receive no word
from you by August 25, we shall assume that you do not desire a
and will decide your appeal upon the basis of the record we now have.
Sincerely yours,
S. P. Ryder
Regional Director
By Stanley A. Niles
Appeals Officer
August 28, 1953
Mr. George P. Kinslow
3420 Reach Street
Philadelphia, Pa.
I
Dear Mr. Kinslow:
As you will recall, we addressed a letter to you on August 17, 1953,
in regard to the reduction in force appeal you submitted to this office.
In that letter we explained in detail the facts we developed as a result
of our inquiry in your case and their relationship to yoip rights under the
Retention Preference Regulations. You were requested to inform this of¬
fice by August 25, 1953, if you still desired an oral hearing. As of this
date no request for an oral hearing has been received add, as we indicated
in our letter, we must therefore assume that you no longer desire a hear¬
ing and decide your case on the information we now have.
The evidence of record shows no indication that the Philadelphia
Naval Shipyard violated any of the Retention Preference! Regulations in not
promoting you to the position of Typewriter Repairman. It appears that
4
the Shipyard’s offer of reassignment to the position of Helper Machinist,
third step, $1. 65 per hour was a reasonable offer of reassignment as it is
defined in the Federal Personnel Manual. Our decision, then, is to affirm
the agency action as proper under the regulations.
We regret that the facts in your case do not permit a more favorable
reply.
Sincerely yours,
S. P. Ryder
Regional Director
By A. R. Southard,
Acting Appeals Officer
CC: Commander
Phila. Naval Shipyard
Phila., Pa.
I. I. AZIMOW
Attorney-at-law
20 South 15th Street
Philadelphia 2, Pa.
November 10, 1953
Third U.S. Civil Service Region
Customhouse
2nd and Chestnut Streets
Philadelphia, Pa.
Attn: Stanley A. Niles, Appeals Officer. Re: Appeal of George P. Kinslow
Dear Mr. Niles:
I have discussed the problem concerning George P. Kinslow with the
Commander of the Federal Employees Veterans Association Post R3-1 of
which Mr. Kinslow is a member. The Commander has discussed the mat¬
ter with Mr. Kinslow, and Mr. Kinslow, the Commander and myself are
of the opinion that the Agency was in error and in violation of regulations
when they reassigned Mr. Kinslow to a position other than Typewriter Re¬
pairman to which he was entitled. Such a reassignment would not of neces¬
sity be a promotion as the Agency seems to indicate.
19
One need only recall the provisions of the c ivil service regulations
dealing with this situation which formerly condoned such actions.
It is our considered opinion that if the Agency intended to be guided
by the spirit and intent of the Veterans Preference Act, such a reassign¬
ment to Typewriter Repairman could have been effected. We trust that
you will reach this conclusion also.
Further, it is our opinion that a personal hearing will add nothing
to the facts which are presently before you and, therefore, we respect¬
fully request that you render a decision favorable to Mr. Kinslow from
the facts presently before you and without the necessity of a personal con¬
ference.
Very truly yours,
TA . pk /S/ I. I. Azimow
100
PERSONAL
United States Civil Service Commission
Third United States Civil Service Region
Office of the Director, Philadelphia, Pa.
November 18, 1953
i
Mr. George P. Kinslow
3420 Reach Street
Philadelphia, Pa. |
i
Dear Mr. Kinslow:
We are in receipt of a letter dated November 10,| 1953, written in
i
your behalf by 1.1. Azimow, Attorney, who informs us that he has been
designated as your representative. Mr. Azimow states in his letter that
it has been decided that a personal hearing will add nothing to the facts
which are presently before this office in connection with your appeal from
the reduction in force action of the Philadelphia Naval Shipyard which re¬
cently affected your employment. The decision in youxj case, therefore,
will be made on the basis of the information of record.!
20
We refer you to our letters of August 17 and August 28, 1953, in
which we explained the relationship of the Retention Preference Regulations
to your case. As it was pointed out in those letters, it was our opinion
that the agency 1 s failure to promote you to the position of Typewriter Re¬
pairman did not constitute a violation of the Retention Preference Regula-
i
tions. While your representative reiterates the claim that your reassign¬
ment to a position other than Typewriter Repairman was "in violation of
regulations”, we feel that this conclusion is not in accord with the facts.
You are respectfully referred, in this connection, to Regulation 20. 5
(d), appearing on page Zl-287 of the Federal Personnel Manual, which spe¬
cifically provides that in a reduction in force "no agency shall be required
to fill a vacant position, or to promote any employee ..." In pursuing
this point further, your representative states that your reassignment to
the position of Typewriter Repairman "would not of necessity be a pro¬
motion". While such a conclusion is logically possible, it would depend
upon the definition placed on the word promotion. According to the de¬
finition of the word promotion as it is used in the Federal Service, and
which appears on page Rl-10 of the Federal Personnal Manual, a promo¬
tion is the advancement of an employee while continuously employed to
101 another position with a higher rate of compensation than his last
previous rate. Since the highest compensation rate of your previous po¬
sition was $. 15 an hour less than the top rate for Typewriter Repairman,
your reassignment to the higher paying position would clearly, according
to the standard definition, constitute a promotion. We wish to point out,
once again, that an agency's authority to promote a qualified employee
is constant, but that the Civil Service Commission cannot require that any
employee be given a promotion.
Our interpretation of the facts in your case provides no basis upon
which a favorable decision in your appeal could rest, and the agency ac¬
tion in failing to reassign you to the position of Typewriter Repairman is
hereby reaffirmed as being permissible under the regulations.
If you feel that this decision is improper, you may make further ap¬
peal to the Commissioners, U.S. Civil Service Commission, Washington
102
25, D. C., within seven days of your receipt of this letter. In the event
such an appeal is made within the prescribed time limit, kindly notify this
office at once in writing so that the file in the case may be transmitted
promptly to the Commissioners.
Sincerely yours,
S. P. Ryder
Regional Director
CC: Commander
Philadelphia Naval Shipyard
U.S. Naval Base
Philadelphia, Pa.
1.1. Azimow, Esq.
20 South 15th Street
Philadelphia, Pa.
I. I. AZIMOW
Attorney-at-law
20 South 15th Street
Philadelphia 2, Pa.
[Stamped "Received Nov. 25, 1953," November 24, 1953
U.S. C.S.C. M& F SEC]
Commissioners U.S. Civil Service Commission
Washington 25, D. C.
Re: Appeal of - George P. Kinslow
Under Section 12 of the Veterans Preference Act from
the Decision of Third U.S. Civil Region.
Dear Sirs:
On behalf of my client, George P. Kinslow, who resides at 3420
Reed Street, Philadelphia, Pennsylvania, I am filing an Appeal from the
adverse decision rendered by the Third United States Civil Service Region
under the date of November 18, 1953.
It is my contention on behalf of my client that Mr. Kinslow should
have been reassigned to the continuing position of typewriter repair man for
which he was fully qualified and was so certified by the Civil Service Com-
mission.
22
It is my considered opinion that the Third U.S. Civil Service Region
improperly applied the regulations to this situation.
It has been my experience in the past that the regulations do permit
such a slight move forward in the event that persons are certified as being
qualified by the Civil Service Commission. The Civil Service Commis¬
sion regulations promulgated under Section 12 of the Veterans Preference
Act permit such a reassignment upward.
I sincerely trust that you will substantiate the position taken regard¬
ing reassignment under Section 12 in the event that a person is qualified for
a position which may result in a slight upgrading.
It is my considered opinion that the Third United States Civil Service
Region T s interpretation of the fact is erroneous and improper and not in
103 accordance with the Civil Service Commission Regulations promul¬
gated under Section 12 of the Veterans Preference Act as amended.
Kindly acknowledge receipt of this appeal and advise of your decision
in due course. We trust that you will agree with the position taken in this
matter and that it will not be necessary to ultimately process a Court ac¬
tion in the District Court from the District of Columbia.
Very truly yours,
I. I. AZIMOW
IIa;rb
104 December 21, 1953
Mr. 1.1. Azimow
Attorney at law
Suite 906
20 South 15th Street,
Philadelphia 2, Pa.
Dear Mr. Azimow:
Your appeal in behalf of Mr. George P. Kinslow from a decision of
the Commissions Third Civil Service Itegion, sustaining his separation
from a position as Puncher and Shearer in a reduction in force at the
t
23
Philadelphia Naval Shipyard, has been carefully considered by this board.
The only issue in the appeal is whether the Commission should have
held the action taken in the reduction in force to be improper in view of
the fact that a lower subgroup preference employee was retained in a po¬
sition as Typewriter Repairman for which Mr. Kinslow is qualified. The
position of Typewriter Repairmen carries slightly higher pay rates than
the position of Puncher and Shearer formerly held by Mr. Kinslow.
The Third Regional Office correctly cited regulation 20.5(d), Page
Z1-287 of the Federal Personnel Manual which provides that although the
agency could have promoted Mr. Kinslow to a higher grade position in lieu
of separation in a reduction in force, the Civil Service Commission did
not require it to do so. The agency action was, therefore, in compliance
with the Commissions regulations as attested by the previous decision of
the Third Region in your case.
There being no basis upon which your appeal in Mr. Kinslow*s behalf
could be sustained, the prior adverse decision is aff irmed.
Sincerely yours,
s/JEB 12/21/53
Chairman
Board of Appeals and Review
cc: Third Region
cc: Mr. George P. Kinslow
cc: Chief, OIR, Code 215
Navy Department
cc: Commander
Philadelphia Naval Shipyard
i
105
[ Filed Dec. 2, 1955]
STIPULATION
It is hereby stipulated by and between the parties hereto, as follows:
1. That the position of Office Machine Typewriter Repairman, was
a continuing position in another competitive level, for which the plaintiff
was fully qualified.
2. That of the incumbents in the positions of (Office Machine) Type¬
writer Repairmen which the plaintiff was entitled to Tt bump", two of them
were veterans with lesser retention points than the plaintiff, while the re¬
maining incumbent was a non-veteran.
3. That the following letters, may be admitted in evidence:
a. Ltr. dated 3 July 1953, from Philadelphia Naval Shipyard
to the plaintiff.
b*<Jjtr. dated July 13, 1953, from plaintiff to the Third Region
of the U.S. Civil Service (Regional Director).
c. Ltr. dated Aug. 17, 1953 from 3rd U.S. Civil Service Re¬
gion to the plaintiff.
d. Ltr. dated Aug. 20, 1953 from 3rd U.S. Civil Service Re¬
gion to the plaintiff
e. Ltr. dated Nov. 18, 1953 from 3rd U.S. Civil Service Re¬
gion to the plaintiff
f. Ltr. dated Dec. 21, 1953 from Board of Appeals & Review
to Mr. I. I. Azimow, the then attorney for the plaintiff.
/S/ Samuel I. Sherwood,
Atty. for Plaintiff
/S/ Joseph A. Rafferty, Jr.
Asst. U.S. Attorney
Atty. for Defendants
106
107
[Filed Dec. 22, 1955]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause having come on for trial, the Court softer consideration
i
of the pleadings, together with the documents submitted in evidence, and
after hearing testimony from both sides, and oral argument by counsel for
the respective parties in open Court, hereby makes the following findings
of fact:
Findings of Fact
!
1. The Plaintiff, George P. Kinslow, on July 3] 1953, was employed
by the Philadelphia Naval Shipyard, Department of the! Navy, as a "Puncher
and Shearer 11 .
2. On July 3, 1953 a notice of separation because of reduction in
force was duly mailed to the plaintiff and thereafter was received by him.
3. The plaintiff wrote to the Regional Director pf the Third Region
of the Civil Service Commission on July 13, 1953 objecting to the proposed
reduction in force for the reason that he felt he should be reassigned to
the position of "Typewriter Repairman" even though it would constitute
a slight increase in pay.
4. On August 17, 1953 the Regional Director of the Third Civil Serv¬
ice Region replied to the plaintiff’s letter of July 13, 1953, and stated the
respective pay scales for the two positions of ’Typewriter Repairman" and
"Puncher and Shearer" concluding that the pay scale |for the former posi¬
tion was higher than that for the latter and consequently would constitute
a promotion. The letter further requested the plaintiff to inform the
Commission if, in view of these facts, he still desired an oral hearing.
I
5. Plaintiff thereafter informed the Regional Office of the Civil Serv¬
ice Commission that he did not desire an oral hearing^
6. On August 28, 1953 the Third Regional Office informed the plain-
i
tiff that the decision of the agency was affirmed and no violation of the Re¬
tention Preference Regulations occurred. The letter further advised plain¬
tiff that the offer of reassignment to the position of Helper Machinist, third
step, was a reasonable offer of reassignment.
7. On November 18, 1953 the Regional Directo^r of the Third Civil
Service Region reviewed the facts again and in a letter to the plaintiff
advised him that the position of "Typewriter Repairman" was a promo¬
tion over the position of "Puncher and Shearer" and since the Regulations
of the Civil Service Commission do not require the agency to promote em¬
ployees the decision would be affirmed.
8. The letter of November 18, 1953 also set out in part the mean¬
ing of the word "promotion" as it is used in the Federal Service.
9. Plaintiff on November 24, 1953 appealed to the Civil Service
Commission.
10. On December 21, 1953 the Civil Service Commission affirmed
the action of the Third Regional Office sustaining the reduction-in-force
action. The Civil Service Commission ruled that the position of Typewriter
Repairman carried with it a higher rate of pay than the position of "Puncher
and Shearer" and consequently was a promotion. The Commission then
concluded that the agency was not required under the Retention Pref¬
erence Regulations to promote an employee.
11. The position of Puncher and Shearer carried with it a pay range
of $1.75 to $1. 95 per hour while the position of "Typewriter Repairman"
carried with it a pay range of $1.80 to $2.10 per hour.
108 12. Plaintiff at the time of his reduction force was receiving $1. 82
per hour basic pay and $. 18 per hour night differential.
Based on the foregoing findings of fact, the Court concludes as a
matter of law:
Conclusions of Law
1. Basic pay is used to determine whether or not a change in position
is a promotion and night differential is immaterial.
2. The position of "Typewriter Repairman" constituted a promotion
over the position of "Puncher and Shearer".
3. Plaintiff was given a reasonable offer of reassignment to the
position of Helper Machinist, third step.
4. Plaintiff was not entitled to the position of "Typewriter Repair-
5. There was no violation of the Retention Preference Regulation
of the Civil Service Commission.
6. The reduction-in-force action was proper in all respects.
- i
JUDGE
I
(CERTIFICATE OF SERVICE)
109 l Filed Dec. 22, 1955]
REQUEST FOR FINDING OF FACT AND CONCLU¬
SIONS OF LAW
AND NOW, comes the plaintiff and requests the Court to make the fol-
lowing Findings of Fact and Conclusions of Law:
Findings of Fact
1. The plaintiff, George P. Kinslow, is a disabled, honorably dis¬
charged soldier of the United States.
2. On July 3, 1953, the plaintiff was employed by the Philadelphia
Naval Shipyard, Department of the Navy, as a Puncher and Shearer, and
held an indefinite appointment in the classified civil Service.
3. His efficiency rating while so employed has at all times been
good or better.
4. On July 3, 1953, the plaintiff received from |the Shipyard Com¬
mander a notice of separation because of a reduction in force.
5. At the time of receiving the said notice and in pursuance of the
notice, plaintiff spoke to a placement officer at the Shipyard and requested
reassignment to the position of Office Machine Typewriter Repairman,
for which the plaintiff was qualified by considerable past experience as
110 well as by competitive civil service examination.
6. That the position of Typewriter Repairman was a continuing po¬
sition in which there was employed a non-veteran oveif whom plaintiff had
retention preference.
7. At the time of receiving the said notice of reduction in force,
plaintiff was receiving $80.00 per week for 40 hours of work as a Puncher
and Shearer, or $2.00 per hour, made up of a basic hourly rate of $1.82,
i
and $. 18 additional for night work.
8. At that time the pay scale for the position of Puncher and Shearer
ran from a min imum of $1.75 per hour to a maximum of $1.95 an hour, and
the pay scale for the position of Office Machine Typewriter Repairman
ran from a minimum of $1.80 an hour to $ 2.03 an hour.
9. The placement officer at the Shipyard told the plaintiff that the
starting rate for Office Machine Typewriter Repairman was $1.80 an
hour but that he could not be reassigned to that position because the maxi¬
mum of the pay scale was greater than the maximum for the position of
Puncher and Shearer.
10. The plaintiff was then reassigned to the position of Machinist
Helper, for which he was not qualified, at the rate of $1. 65 an hour.
11. Plaintiff has exhausted his administrative remedies and has
appealed both to the Third Region Civil Service Commission and the United
States Civil Service Commission.
Conclusions of Law
1. Plaintiff is a preference eligible within the meaning of preference
111 eligible as set forth in the Veterans 1 Preference Act of 1944, as
amended.
2. That upon receiving a notice of separation because of reduction
in force, the plaintiff was entitled to reassignment to a continuing posi¬
tion which he was qualified to fill, in the same or another competitive
level, without reduction in grade or pay, or if that was not possible, with
the least necessary reduction in grade or pay.
3. That the reduction in force action by the Philadelphia Naval Ship¬
yard was improper in that plaintiff was not reassigned to the available con¬
tinuing position of Typewriter Repairman, for which he was qualified and
in which position a non-veteran was employed over whom plaintiff had re¬
tention preference.
4. That the reassignment of plaintiff from his position of Puncher
29
and Shearer at $2.00 an hour, made up of $1.82 an hour base pay and
$. 18 an hour night differential, to the position of Typewriter Repairman
at $1.80 an hour would have constituted a reassignment to a position in
another competitive level with the least reduction in pay.
5. The plaintiff was entitled to the position of Typewriter Repair¬
man.
6. That the reassignment of the plaintiff to the position of Helper
Machinist, third step, at $1.65 an hour, constituted a!reassignment to a
position in another competitive level at a greater redaction in pay than
was necessary.
7. The Philadelphia Naval Shipyard violated the Retention Preference
Regulations of the Civil Service Commission in failing to make a reasonable
112 offer to the plaintiff of reassignment to another position for which he
was qualified in connection with the reduction in force.
8. An employee is not promoted in a reassignment from one position
to another where he receives less pay in the position ^o which he is reas¬
signed.
/S/ ALBERT J. BADER,
SAMUEL I. SHERWOOD,
Attorneys for Plaintiff
(CERTIFICATE OF SERVICE)
113 [ Filed Dec. 22, 1955]
JUDGMENT
This cause having come on to be heard, the Court having considered
the pleadings, together with the documents submitted in evidence, and
having heard testimony in open court, and having heard oral argument of
counsel for the respective parties, and having filed herein its findings of
fact and conclusions of law, it is this 22nd day of December, 1955,
V
ORDERED that judgment be and the same hereby is entered herein
in favor of the defendant.
/S/
JUDGE
(CERTIFICATE OF SERVICE)
114
l Filed Dec. 22, 1955]
ORDER
The cause having come before the Court sitting without a jury, and
the Court having heard testimony and having fully considered said testimony
and the evidence adduced in court, and the Court having heard and consid¬
ered arguments of counsel, and plaintiff having filed his Request for Find¬
ings of Fact and Conclusions of Law, and defendants having filed Findings
of Fact and Conclusions of Law, and the Court having considered same and
being fully advised in the premises, it is this 22nd day of December, 1955
ORDERED, that the plaintiff’s Request for Findings of Fact and
Conclusions of Law be and the same hereby is denied, and that they be
filed as proposed findings of fact and conclusions of law, and it is
FURTHER ORDERED, that defendants' Findings of Fact and Conclu¬
sions of Law be, and the same hereby are accepted, and shall be so en¬
tered, and it is
FURTHER ORDERED, that judgment be separately entered in favor
of defendants herein.
/s/
JUDGE
*
31
115 l Filed Jan. 24, 1956]
NOTICE OF APPEAL
Notice is hereby given this 24th day of January, j 1956, that George
P. Kinslow, plaintiff, hereby appeals to the United States Court of Appeals
for the District of Columbia from the judgment of this Court entered on
the 22nd day of December, 1955 in favor of Charles eL Wilson, et al.,
defendants, against said George P. Kinslow, plaintiff j
Samuel I. Sherwood
Albert J. Bader
Attorneys for Plaintiff
Mr. Clerk of the Court: Please mail a copy of the foregoing notice of
appeal to Leo A. Rover, esq., United States
Attorney, at the U.S. District Court House,
3rd & Constitution Ave., N r W. Washington,
D. C., who is the attorney for all defendants.
Samuel I. Sherwood
Attorney for plaintiff
32
4
[ Filed Feb. 1, 1956] Rl-11 Notifications of Personnel Actions. Plfs. Ex. 1
119 PARTI. APPOINTMENTS (COMPETITIVE AND NONCOMPETITIVE) - Continued
(Personnel actions which add employees to the rolls of the agency)
Standard Terms and
Abbreviations Explanation and Coverage
Restoration Restoration of a former Federal employee after separation, as a result of:
Restor — Appeal under section 14 of the Veterans’ Preference Act;
— Appeal under the Retention Preference Regulations;
— Appeal under Part 9 of the Commission's regulations;
— Appeal from performance rating;
— Administrative appeal under grievance procedures;
— Appeal under Fair Employment Procedures;
—Corrective action by the agency in cases of the types described above, without
appeal to the Commission.
PART II. CHANGES
(Personnel^ actions which occur while continuously employed within the same agency, and which /portion
illegible/* * * addition or loss of employees for the agency as a whole)
PART IIA . Position. Changes 1
(Includes Promotions, changes to lower grade, and reassignments)
Standard Terms and
Abbreviations Explanation and Coverage
Promotion The change of an employee:
Prom (1) To a higher grade, when both the old and the new positions are under the
Classification Act of 1949, as amended, or under the same type graded wage
Schedule; or
(2) To a position in which he will receive a higher rate of compensation, when both
the old and the new position are under the same type ungraded wage schedule,
or they are in different pay method categories.
/ This term covers the promotion of an employee as a result of an appeal from, or cor¬
rective action taken by an agency after, a change to lower grade; also, changes
to a higher grade as a result of an upgrading of the position which the employee
occupied or because a new or revised position description is established for the
position which he occupied^/
A.
*
. 1 *
4
+ *
I
4 <
r ’
r
4
4
* «
4
Change to Lower The change of an employee:
Grade (1) To a lower grade, when both the old and the new positions are under the
Chg Lower Grade Classification Act of 1949, as amended, or under the same type graded wage
schedule; or
(2) To a position in which he will receive a lower rate of compensation, when both
the old and the new positions are under the same type ungraded wage schedule,
or they are in different pay method categories.
/ This term covers the change to lower grade as a result of a downgrading of the
position which the employee occupied, or because a new or revised position
description is established for the position which he occupied, except that, in
the case of a retroactive change to lower grade based on a classification deci¬
sion after an appeal from downgrading, to a grade between the grade formerly
held by the employee and die grade to which downgraded, the action is effec¬
ted as a "Correction" — see Part IV of Table 2/
Reassignment
Reassign
The change of an employee from one position to another, without promotion or de¬
motion. (Changes where a difference in salary is caused solely by local prevailing
wage-rate structures are also reassignments within this definition.)
1 Whether such a change is a reduction in rank or compensation within the purview of the Veterans’ Prefer
ence Act of 1944, as amended, is decided on the basis of the facts and circumstances of the case.
/Effective January 23, 1955_/
<
- i
«
Ti
u
I
FEDERAL PERSONNEL MANUAL
TS 486
* *
33
120 Rl-12 CHAPTER Rl. RECORDS AND REPORTS
. A — ■ — — -■ ■ — ■ ■ ■ - - ---
'
* PART IIB . Changes by Conversion to Another Type of Appointment
I
4 * (Change of an employee's appointment to a different type of appointment. A change by conversion may
be made in the same position in which the employee is serving or to a different position, and may change
-* his status and/or his tenure)
Standard Terms and
Abbreviations Explanation and Coverage
» •
i
*■
f* 1
L:
> *
p- p
>- ►
t
I A
> A
A A
A
1 a A
r *
Iax
Conversion to Career Acquisition of a career appointment:
Appointment -By an employee currently serving in a competitive position, under Parts 3 or 11
Conv to Career Appt of the Commission’s regulations;
-By a temporary, indefinite or excepted employee; who xs selected from a compe¬
titive register to fill a continuing position in the Competitive service: or
-By a career conditional employee upon completion of the 3-year service require-
_ment.
/ For circumstances under which employees may acquire career appointments see
Chapter C4 and section 2 of Chapter X-1J
Conversion to Career-
Conditional Appoint¬
ment
Conv to Career-
Cond Appt
Acquisition of a career-conditional appointment:
-By an employee currently serving in a competitive position, under Parts 3 or 11
of the Commission's regulations; or
-By a temporary, indefinite or excepted employee jwho is selected from a com-
_petitive register to fill a continuing position in the competitive service.
/ For circumstances under which employees may acquire_career-conditional ap¬
pointments see Chapter C4 and section 2 of Chapter Xl-lJ?
Conversion to Rein
statement
Conv to Reins
Conversion of the temporary, excepted, or indefinite appointment of an employee
who meets the requirements for reinstatement (see rReinstatement". page Rl-10).
Report as "Conversion to Reinstatement (Career)" if) the employee meets die re¬
quirements for a "Reinstatement (Career)"; if not. report as "Conversion to Rein¬
statement (Career-Conditional)."
Conversion to Excepted
Appointment
Conv to Exc Appt
Conversion to Temporary
Appointment
Conv to Temp Appt
The term "Conversion to Excepted Appointment" is appropriate:
(1) When a temporary or indefinite employee’s position is changed from com¬
petitive to excepted;
(2) When an excepted position held by the employee is changed from one Sched¬
ule to another under Civil Service Rule VI;
(3) When a Schedule A, B. or C position held by tijie employee becomes an ex-
cepted-by-law position, or vice versa;
(4) When an excepted position is filled by a person! already serving under a tem¬
porary appointment in the same agency; or
(5) When a specific or indefinite time limitation upon an excepted appointment
is removed.
-1-
I
The term "Conversion to Temporary Appointment" is appropriate for a change:
(1) From a temporary appointment to another type of temporary appointment
(for example, from emergency to job appointment; from job appointment tc
temporary pending the establishment of a register);
(2) From an excepted appointment limited to one yjear or less to a temporary
appointment.
/ Effective January 23, 1955._/
FEDERAL PERSONNEL MANUAL
TS 486
34
EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS
1
Civil Action No. 3765-54
George P. Kinslow,
Plaintiff,
vs.
Charles E. Wilson, et al.,
Defendants
[ FUed March 27, 1956]
Washington, D.C.
Tuesday, December 6, 1955
The above-entitled action came on for trial before the Honorable
CHARLES S. McLAUGHLIN, United States District Judge, at 10:10 o'clock
a.m.
APPEARANCES:
On behalf of the Plaintiff:
SAMUEL I. SHERWOOD, Esq., and
ALBERT J. BADER, Esq.
2 On behalf of the Defendants:
JOSEPH A. RAFFERTY, Esq.
*******
39 MR. BADER: If the Court please, I should like at this time to offer
in evidence, on behalf of the plaintiff, the following paragraphs of the com¬
plaint which have been admitted by the defendants: paragraph 1, paragraph
2, paragraph 5, paragraph 6, paragraph 7, paragraph 8, paragraph 9,
paragraph 10, paragraph 11 and paragraph 16. I should like also to
offer in evidence so much of paragraph 15 as alleges that the plaintiff
appealed to the appropriate officers at the Philadelphia Naval Shipyard
for reassignment to the position of office machine-typewriter repairman.
Whereupon
GEORGE P. KINSLOW
the plaintiff, was called as a witness on his own behalf, and having first
been duly sworn, was examined and testified as follows:
*******
40 DIRECT EXAMINATION
*
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BY MR. BADER:
* * * * * * *
41 Q. From July of 1953, where were you employed? A. I was em¬
ployed at the Philadelphia Navy Shipyard.
42 Q. In the early part of July, in what capacity were you employed?
A. As a puncher-shearer.
* * * * * * *
Q. And when did you receive your notice of separation as the result
of a reduction-in-force? A. July 5th of 1953.
*******
48 BY MR. BADER:
Q. When you made the request for assignment to the position of
j
office machine-typewriter repairman, was your request granted? A. No,
sir, the request was not granted. On what the Placement Officer said,
j ^
the base rate of these pays are different and I'm pretty sure he said ten
i
or twelve cents difference in the maximum pay of typewriter repairman
i
than the puncher-shearer but he did not offer me the job. He told me that
that was the rate of pay.
THE COURT: He said there was a ten or twelve cent difference in
the base pay between these two jobs?
THE WITNESS: The maximum, your Honor, and he considered that
a promotion and I asked him why a promotion because at the time, if I would
i
start that job — I was receiving $1.82 or $2.00 with night differential and
he said, 'Well, that is the only job I have for you, outside machinist helper,"
he said, "and that is your job if you want it. ♦ \ * *
If he had made me a reasonable offer — give me the typewriter re-
i
49 pair job which was $1.80 to start, maybe in a few years, if my health
held out or I wasn't caught in another rif, maybe in three or four more
years, I would have received the maximum. * j * *
BY MR. BADER:
Q. Did you have any discussion with him as to whether there was
any night work in the job of office machine-typewriter repairman?
A. He said there was no work at that time. i
36
*******
50 BY MR. BADER:
Q. Now, when was it that you signed this paper accepting the posi¬
tion of machinist helper — was that it? A. Yes, sir. I don T t know ex¬
actly the date but it was before my 30-day separation was ejqpired or less,
if I had to decide between that time, I would have had no job according to
the Placement Officer at that time.
*******
51
Q. And have you continued to do the work of machinist helper from
that time, late in August or beginning of September 1953, down to the pres¬
ent time? A. I T m considered a machinist helper in the job Pm doing;
yes, sir. * *****
Q. And what have you been paid per hour? What is your rate per
hour in that job? A. At that time, I was hired for $1. 65 an hour.
52 Q. I see. There is nothing in the record about this so I must ask
you. What was your efficiency rating while you were employed at the
Philadelphia Navy Shipyard in July of 1953 and previous thereto? A.
Satisfactory.
*******
CROSS EXAMINATION
BY MR. RAFFERTY:
*******
53 Q. * * * is it your testimony that you were receiving $2.00
per hour as pay? A. Yes, sir.
Q. Now, wasn’t part of that $2.00 made up because of the fact that
you worked nights? A. It was night differential, I stated that.
Q. And isn’t it a fact that your basic pay for the job of puncher and
shearer in 1953 was $1.82 an hour? A. My pay was $2.00 an hour.
Q. Did you just say that it was $1.82 an hour and 18 cents was dif¬
ferential? A. Made it $2.00.
Q. But 18 cents was because of the fact that you worked at nights,
isn’t that correct? A. Yes, sir.
u
*
* ♦
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37
MR. RAFFERTY: Your Honor, as has been stimulated and as I
called your attention at the outset, the number of documents listed in
the stipulation which are before your Honor and are attached to the de¬
fendant's motion for summary judgment, have been admitted into evidence.
There is a list of six different documents, Your Honor, that are in the
stipulation.
THE COURT: The documents set forth in the stipulation will be
j
received in evidence. * * *
JOSEPH FRANCIS ACKER, JR j
was called as a witness on behalf of the defendants, ; * *
DIRECT EXAMINATION
BY MR. RAFFERTY:
Q. Where are you employed? A. In the Office of Industrial Rela¬
tions, Navy Department, Washington, D. C.
Q. What is your position there, sir? A. Assistant Head of Em¬
ployment Regulations Branch, Employment Division, Office of Industrial
Relations.
Q. Now, as such, are you familiar with the retention preference
regulations and their effect? A. Yes, sir.
Q. In the Federal service in determining whether or not an em¬
ployee is promoted from one position to another, do yOu use or do you
consider overtime or night pay to determine whether one position is a
promotion over another position?
A
THE WITNESS: We have definitions governing personnel actions.
The definition for promotion does not include differential or overtime in
consideration of what constitutes a promotion.
BY MR. RAFFERTY:
Q. Where does that definition appear, sir? A.
We provide the
38
definition for promotion in two of our naval civilian personnel instructions.
* * * * It appears in the instruction, 160,
59 dealing with promotions and it appears in our instructions, No.
135, dealing with personnel actions.
*******
THE WITNESS: There is a definition of promotion which includes
all possible actions that might take place in and between the two general
categories of positions, graded and ungraded. I would like to refer to the
NCPI 160, to read that definition.
MR. RAFFERTY: Thank you, sir.
THE WITNESS: "Promotion. Advancement of an employee while
continuously employed within the naval establishment: One, to a higher
grade when both positions are under the Classification Act; or two, to
another position with a higher rate of compensation not including salary
differential or overtime pay than his last previous rate when he changes
from a position outside the Classification Act to a position under the
Classification Act or vice versa; or three, to a position with a higher
60 minimum salary not including salary differential or overtime pay
when both positions are ungraded."
*******
MR. RAFFERTY: Are you able to testify from position of puncher
and shearer in the naval shipyard whether they are of an ungraded or
graded nature?
*******
THE WITNESS: The position of puncher and shearer is an ungraded
position.
*******
61 MR. RAFFERTY: Let me ask you a hypothetical question. Assume
that the pay range for the job of puncher and shearer ranged from $1.75
an hour to $1.95 an hour and that the pay range for the position of type¬
writer repairman ranged from $1.80 an hour to $2,03 an hour. Can you
tell us, assuming those facts, whether the job of typewriter repairman
would constitute a promotion over the job of puncher and shearer?
39
* * * * * * *
62 THE WITNESS: On the Information given in the hypothetical ques¬
tion, it would appear that the pay range consisting of four steps of puncher
and shearer, $1.75 to $1.95, $1.75 would therefore constitute the mini-
mum step for puncher and shearer. The pay range given in the hypothe¬
tical question for the typewriter repairman was $1.80 to $2.03. The
$1.80 would therefore constitute the minimum step for the typewriter
repairman, according to the definition and my understanding of the appli¬
cation of the term "promotion." The position change jfrom puncher and
shearer to typewriter repairman under those circumstances would consti¬
tute a promotion between two ungraded positions.
BY MR. RAFFERTY:
Q. Now, have the definitions that you have referred to relating to
I
promotion contained in Navy civilian personnel instructions been approved
by the Civil Service Commission? A. The definition as it related to the
63 position change between ungraded positions has been approved by the
Civil Service Commission in a letter form.
* * * * * * *
73 THE COURT: WeU, as the Court stated at the outset, the issue
which the Court has sought to have delineated was delineated, in the Court’s
74 opinion, and the question comes down to whethejr or not the plain¬
tiff has been refused a removal or transfer to anothe* position in viola¬
tion of the law and that question is to be determined by a construction of
Title 5, 20. 5(b), being captioned "Reasonable Chang^ in Position," in
which it is stated that no agency shall be required to till a position or to
transfer any employee to a different duty station and no agency shall be
prohibited fromtaking such administrative action and no agency shall be
j
required to promote any employee.
So, the question comes down, as the Court has stated at the outset,
i
to one of whether or not the position to which the plaintiff prays that he be
appointed would constitute a promotion.
Now, the basic pay of the position which the plamtiff was occupying
ranged from $1.75 to $1.96 an hour. The basic pay of the position to
l-WA
which he sought appointment and of which he contends he was deprived
in violation of law, namely, the typewriter repair position, carries
basic pay ranging from $1.80 to $2.03.
Now, there is a good deal of feeling between the two as to whether
other elements should be taken into account: differential, overtime pay,
et cetera.
The Court is persuaded from all the testimony that the determina¬
tion of the question of promotion is to be based upon consideration of the
basic pay, not of the other elements to which the Court has referred,
and the Court is of the belief and finds that the position to which the plain¬
tiff contends he should have been assigned, namely, the position of office
machine-typewriter repairman, is a position which would have required
a promotion and that under the law referred to, that cannot be imposed upon
the Commission by the Court. Consequently, the Court holds for the Gov¬
ernment and counsel for the Government will prepare findings of fact,
conclusions of law and order and submit same to counsel for the plaintiff
and thereafter to the Court for execution.
/ o - /*?-sz
BRIEF FOR APPELLEES
United States Court of
Appeals
For the District of Columbia Circuit
No. 13255
George P. Kin slow, Appellant
Charles E. Wilson, et al., Appellees
Appeal from the United States District Court for the
District of Columbia
I
.George Cochran Doub,
Assistant Attorney General,
Oliver GasCh,
United States Attorney ,
l35c i
. ; . Melvin Richter,
B. Jenkins Middleton,
Attorneys,
v/ _ Department of Justice ,
Washington 25, D. C.
i
i
QUESTION PRESENTED
Whether the district court properly ruled that the
applicable statutes and regulations relating to reductions
in force in the Department of the Navy did not require
that appellant be reassigned from his former position of
Puncher and Shearer to that of Typewriter Repairman,
since such reassignment would constitute a “promotion”
to which appellant was not entitled as a matter of right.
INDEX
Page
Counter-statement of the case . 1
Statute and regulations involved . 4
Summary of argument . 7
Argument . 8
Appellant was not entitled to be reassigned to the position
of Typewriter Repairman, since such reassignment would
have constituted a promotion to which appellant was not
entitled as a matter of right. 9
Conclusion . 15
Cases:
Citations
Ashley v. Ross, 89 U.S. App. D.C. 339, 191 F. 2d 655. 10
Bailey v. Richardson, 86 U.S. App. D.C. 248, 182 F. 2d 46,
affirmed, 341 U.S. 918 .8,12
Benenati v. Young, 95 U.S. App. D.C. 120, 220 F. 2d 383 8
Bortin v. United States, 138 F. Supp. 251 (C. Cls.).9,10
Bowles v. Seminole Rock and Sand Co., 325 U.S. 410. 12
Carter v. Forrestal, 85 U.S. App. D.C. 53, 175 F. 2d 364,
certiorari denied, 338 U.S. 832 . 8
Cutting v. Higley, C.A.D.C. No. 12898, decided May 17,
1956 .9,10
Eberlein v. United States, 257 U.S. 82. 8
Elder v. Brannan, 341 U.S. 277 . 10
Foss v. Gray, 91 U.S. App. D.C. 28, 197 F. 2d 587, certi¬
orari denied, 344 U.S. 839 .9, 10, 14
Hilton v. Sidlivan, 334 U.S. 323 . 10
Johnson v. War Assets Administration, 171 F. 2d 556
(C A. 7) . 14
Keim v. United States, 177 U.S. 290 . 8
Kelly v. United States, 138 F. Supp. 244 (C. Cls.). 10
L. Gillarde Co. v. Joseph MartineUi & Co., 169 F. 2d 60
(C.A. 1) . 12
Levy v. Woods, 84 U.S. App. D.C. 138, 171 F. 2d 145. 8
Nash v. Interstate Commerce Commission, 96 U.S. App. D.C.
203, 225 F. 2d 42, certiorari denied, 350 U.S. 953. 9
Powell v. Brannan, 91 U.S. App. D.C. 16, 196 F. 2d 871.8,10,14
Wagner v. Higley, C.A.D.C. No. 12910, decided May 17,
1956 .9,10
Williams v. Cravens, 92 U.S. App. D.C. 380, 210 F. 2d 874,
certiorari denied, 348 U.S. 819 . 8
11
Index Continued
Statutes and Regulations: Page
Act of August 23, 1912, Section 4, 5 U.S.C. 648, repealed
bv Act of September 23, 1950, Section 11(1) . 9
5 U.S.C.A. § 1113(b) . 13
Veterans’ Preference Act
Section 12 (5 U.S.C. 861) .4, 9, 14
Section 14, as amended by the Act of August 4, 1947
(5 U.S.C. 863) . 9
Civil Service Regulations, 17 F.R. 11733, as amended 18
F.R. 3085
20.5 . 5
20.5(a) . 5
20.5(b) .5, 7, 10, 13
20.5(d) .2, 3, 4, 5, 7, 10
Code of Federal Regulations, Title 5. 4
Miscellaneous:
Federal Personnel Manual . 11
page A3-1 . 3
page Rl-10 .3, 6, 11, 13
Naval Civilian Personnel Instruction No. 160, issued June
4, 1953, Section 1-2.6, 11, 12
United States Court of Appeals
For the District of Columbia Circuit
No. 13255
George P. Kinslow, Appellant
v.
Charles E. Wilson, et al., Appellees
Appeal from the United States District Court for the
District of Columbia
BRIEF FOR APPELLEES
COUNTERSTATEMENT OF THE CASE
This is an appeal from a judgment for appellees entered
on December 22, 1955, after a trial on the merits before
the United States District Court for the District of
Columbia sitting without a jury. The facts are undisputed
and are as follows:
Prior to July 1953 appellant, an honorably discharged
veteran, had been employed at the Philadelphia Naval
Shipyard, an agency of the Department of the Navy, in the
ungraded position of Puncher and Shearer at a salary of
$1.82 per hour basic pay, plus $0.18 per hour night differ¬
ential (J.A. 1, 13, 25, 26). On July 3, 1953, appellant
received a notice of separation because of reduction in
force informing him that positions in his competitive level
2
would have to be eliminated and that his services would
be terminated on August 7,1953 (J.A. 13, 14, 25). Shortly
thereafter appellant was offered reassignment to the posi¬
tion of Helper Machinist, third step, at $1.65 per hour,
in lieu of separation (J.A. 18, 26, 35, 36). This offer was
accepted under protest (J.A. 36), and at the time of the
trial of this action appellant was employed as a Helper
Machinist (ibid.).
Appellant wrote to the Regional Director of the Third
United States Civil Service Region on July 13, 1953, ob¬
jecting to the proposed action of the Shipyard and assert¬
ing that since he had been certified as a qualified Type¬
writer Repairman he should have been reassigned to one
of three such positions at the Shipyard which were then
held by persons in lower retention sub-groups than that
of appellant, “ * * * even though it may be a slight in¬
crease in pay” (J.A. 15, 25). The Regional Director re¬
plied by letter of August 17, 1953, affirming the action
of the Shipyard on the ground that the pay range for
Puncher and Shearer positions was from $1.75 to $1.95
per hour while that for Typewriter Repairman positions
was from $1.80 to $2.10 per hour, and consequently to
have reassigned appellant to the position of Typewriter
Repairman, with a higher salary schedule than his former
position, would have constituted a promotion under the
applicable Civil Service Retention Preference Regulations
(J.A. 16, 25). These regulations, it was noted, permitted
but did not require the agency to offer appellant a pro¬
motion (J.A. 16, 25). The Regional Director reiterated
his ruling in a second letter dated August 28, 1953, and
further noted that “• * * the Shipyard’s offer of reassign¬
ment to the position of Helper Machinist, third step, $1.65
per hour was a reasonable offer of reassignment as it is
defined in the Federal Personnel Manual” (J.A. 17,18, 25).
On November 18, 1953, the Regional Director again re¬
viewed the facts and reaffirmed his decision in a letter to
appellant (J.A. 19-21, 25, 26). Citing Civil Service Regula¬
tion 20.5(d), 1 providing that in a reduction in force “no
i See below, p. 5.
3
agency shall be required to fill a vacant position, or to
promote any employee * * * ”, the letter pointed out that
“ [according to the definition of the word promotion as it
is used in the Federal Service, and which appears on page
Rl-10 of the Federal Personnel Manual, a promotion is
the advancement of an employee while continuously em¬
ployed to another position with a higher rate of compensa¬
tion than his last previous rate” 2 (J.A. 20). Since the
highest compensation rate for appellant’s previous posi¬
tion was $0.15 an hour less than the highest rate for
the position of Typewriter Repairman, the Regional Di¬
rector concluded that, under the regulatory definition, the
reassignment sought would constitute a promotion and
therefore could not be compelled (J.A. 20).
Appellant, through his attorney, appealed this decision
to the Civil Service Commission by letter of November
24, 1953, expressing the view that the regulations “permit
such a slight move forward * • * [or] reassignment up¬
ward”, even if the change “ * * * may result in a slight
upgrading” (J.A. 22). The Commission’s Board of Ap¬
peals and Review affirmed the decision of the Third
Regional Office on December 31, 1953, concluding that the
Third Regional Office had correctly cited Section 20.5(d)
of the Regulations, and that although the agency could have
promoted appellant, it was not required to do so (J.A.
22, 23).
Appellant filed his complaint in the court below on Sep¬
tember 3, 1954, seeking a preliminary injunction ordering
his reassignment to the position of Typewriter Repairman
and a declaratory judgment (J.A. 1-6). After appellees
answered, asserting that the complaint failed to state
a claim upon which relief could be granted and that the
reassignment sought -would constitute a promotion to which
appellant was not entitled (J.A. 7), the District Court’s
Commissioner of Veterans’ Cases filed a Report and Opin-
p
2 The Federal Personnel Manual is “ * * * the official medium of the
United States Civil Service Commission for issuing its regulations, instruc¬
tions, and suggestions to other agencies.’’ Federal Personnel Manual,
page A3-1.
4
ion recommending that the court rule in favor of appellees
on the grounds set forth in the answer (J.A. 8-12). On
July 25, 1955, appellees filed a motion for summary judg¬
ment with attached exhibits (J.A. 12-23), which was denied.
On December 6, 1955, the district court heard testimony
and arguments of counsel and, at the close of the trial,
ruled in favor of appellees, holding that the reassignment
sought would constitute a promotion which, under the
applicable regulations, could not be compelled by the
court 3 (J.A. 34-40). Findings of Fact and Conclusions of
Law, which set forth in substance the foregoing facts, as
well as the Judgment and Order were entered on December
22, 1955 (J.A. 25-27, 29, 30). The notice of appeal was
filed on January 24, 1956 (J.A. 31).
STATUTE AND REGULATIONS INVOLVED
1. Section 12 of the Veterans’ Preference Act, 58 Stat.
390, 5 U.S.O. 861, provides in pertinent part:
In any reduction in personnel in any civilian service
of any Federal agency, competing employees shall
be released in accordance with Civil Service Com¬
mission regulations which shall give due effect to tenure
of employment, military preference, length of service,
and efficiency ratings: Provided , That the length of
time spent in active service in the armed forces of
the United States of each such employee shall be
credited in computing length of total service: Pro¬
vided further , That preference employees whose effi¬
ciency ratings are “good” or better shall be retained
in preference to all other competing employees and
that preference employees whose efficiency ratings
are below “good” shall be retained in preference to
competing non-preference employees who have equal
or lower efficiency ratings • • # .
3 According to the transcript, the court made reference to “Title 5, 20.5(b),
being captioned ‘Reasonable Change in Position’ * * * ” (J.A. 39). It is
apparent that the reference intended was to Section 20.5(d), “Reasonable
change in position”, of the regulations, as set forth below at page 5. That
section was codified in the supplement to Title 5 of the Code of Federal
Regulations.
5
2. Section 20.5 of the Civil Service Regulations in effect
at the time of the action here complained of (17 F.R. 11733,
as amended by 18 F.R. 3085) provided in material part:
Actions —(a) In general. Employees who cannot
be retained in their positions because of a reduction in
force will be changed to continuing positions, sepa¬
rated, or furloughed.
(b) Employees in positions in the competitive serv¬
ice. (1) No employee may be separated, or furloughed
for more than thirty days, or reduced in pay or grade
in a reduction in force while a competing employee
with lower retention standing is retained in the same
competitive level.
(2) No employee in any subgroup of the career
group or the career-conditional group who is willing
to accept a reasonable change in position may be
separated, furloughed for more than 30 days, or sub¬
jected to greater reduction in pay than necessary under
such reasonable change in position, if he is qualified
for a continuing position in another competitive level
in his present competitive area in which an employee
with lower subgroup standing is retained, or if he is
qualified to go back to a continuing position from
which he was promoted (or to an essentially identical
position) in his present competitive area in which an
employee with lower retention standing is retained.
• • • * •
(d) Reasonable change in position. Any change in
position under these regulations is reasonable if it
is made without reduction in grade or pay. If a reduc¬
tion in grade or pay cannot be avoided, any such
change is reasonable if made with the least reduction
required to conform with these regulations. Em¬
ployees are not required to be given options as to
alternative changes possible in any particular case.
No agency shall be required to fill a vacant position,
or to promote any employee, or to transfer any em¬
ployee to a different duty station, and no agency shall
be prohibited from taking such administrative actions.
• * •
3. Page Rl-10 of the Federal Personnel Manual in effect
at the time here involved defined the word “promotion” as
follows:
Advancement of an employee while continuously
employed:
(1) To a higher grade when both positions are
under the Classification Act or when both positions
are under the same agency-established pay schedule in
which grades are assigned, or
(2) To another position with a higher rate of com¬
pensation (not including salary differential or over¬
time pay) than his last previous rate when: (a) the
change is from a position outside the Classification
Act to a position under the Classification Act or vice
versa, (b) the positions are in different agency-estab¬
lished pay schedules, or (c) both positions are under
a pay schedule in which grades are not assigned.
4. Naval Civilian Personnel Instruction No. 160, issued
June 4, 1953, is as follows in pertinent part:
Section 1-2. Definitions.
• • * * •
c. Promotion .—Advancement of an employee while
continuously employed within the Naval Establish¬
ment:
(1) to a higher grade when both positions are under
the Classification Act, or
(2) to another position with a higher rate of com¬
pensation (not including salary differential or over¬
time pay) than his last previous rate when: (a) the
change is from a position outside the Classification
Act to a position under the Classification Act or vice
versa.
(3) to a position with a higher minimum salary
(not including salary differential or overtime pay)
when both positions are ungraded.
7
SUMMARY OF ARGUMENT
Appellant, who formerly occupied the ungraded position
of Puncher and Shearer in the Philadelphia Naval Ship¬
yard, contends that his reassignment, following a reduc¬
tion in force, to the ungraded position of Helper Machinist
and the concomitant failure to reassign him to the higher¬
paying ungraded position of Typewriter Repairman con¬
stituted a violation of his rights under the Veterans’ Pref¬
erence Act. Appellant asserts that under the applicable
statutes and regulations, he was entitled, as a matter of
right, to be reassigned to the Typewriter Repairman posi¬
tion, and that consequently the reassignment to the Helper
Machinist position was not a “reasonable change in posi¬
tion” as defined by Section 20.5(d) of the regulations, since
it “subjected him to greater reduction in pay than neces¬
sary * * * ” (Section 20.5(b)(2)). While apparently con¬
ceding the validity of the regulatory provision that “[n]o
agency shall be required * * * to promote any employee
* * * ” (Section 20.5(d)) and therefore conceding that he
had no right to reassignment as a Typewriter Repairman
if such reassignment would constitute a promotion over his
former position as Puncher and Shearer, appellant insists
that the reassignment sought would not in fact be a pro¬
motion. In making this argument, appellant in effect at¬
tacks the validity of the regulations defining “promotion”
under which the action complained of was carried out.
There is no merit in appellant’s contentions. The ap¬
plicable rules and regulations make it plain that to have
reassigned appellant to the position he seeks would in fact
have resulted in a promotion. It is undisputed that the
pay schedule for the position of Puncher and Shearer was
lower than that for the position of Typewriter Repairman,
and under the regulations this fact is controlling. That ap¬
pellant was receiving a slightly higher rate of pay at the
time of the reduction in force than the minimum pay for
Typewriter Repairman is immaterial. There is no in¬
firmity in the regulations, and they must accordingly be
given full effect.
While we readily concede that it was within the power
8
of the Shipyard authorities to have promoted appellant to
the Typewriter Repairman position if they desired to do
so, such action cannot be compelled by either the Civil
Service Commission or the courts. Accordingly, no rights
of appellant have been violated. Appellant’s reassign¬
ment to the position of Helper Machinist was in full com¬
pliance with the statutes and valid regulations, as the
Civil Service Commission, the Commissioner of Veterans’
Cases, and the court below have all agreed. The decision of
the district court should, therefore, be affirmed.
ARGUMENT
This Court and others have repeatedly emphasized that
they will not interfere with the personnel actions of
executive agencies except to ensure substantial compliance
with the prescribed statutory or procedural requirements.
Eberlein v. United States, 257 U.S. 82; Keim v. United
States, 177 U.S. 290; Benenati v. Yowng, 95 TJ.S. App. D.C.
120, 220 F. 2d 383; Williams v. Cravens, 92 U.S. App. D.C.
380, 210 F. 2d 874, certiorari denied, 348 U.S. 819; Bailey
v. Richardson, 86 U.S. App. D.C. 248, 182 F. 2d 46,
affirmed, 341 U.S. 918; Carter v. Forrestal, 85 U.S. App.
D.C. 53, 175 F. 2d 364, certiorari denied, 338 U.S. 832;
Levy v. Woods, 84 U.S. App. D.C. 138, 171 F. 2d 145. In
Powell v. Brarman, 91 U.S. App. D.C. 16,17, 196 F. 2d 871,
873, this Court said:
We think it well to reiterate that in civil service
cases the task of the courts is a limited one. Certainly
they cannot undertake to pass on a plaintiff’s qualifica¬
tions for any given post, or to compare them with
those of an incumbent. It is not within their province
to weigh the merits of a person’s claim to a
Federal job. Congress has established administrative
machinery to make these determinations. Where there
has been a substantial departure from applicable pro¬
cedures, a misconstruction of governing legislation, or
like error going to the heart of the administrative
determination, a measure of judicial relief may on
occasion be obtainable. But no such basis for relief
has here been laid.
9
This case clearly presents no “substantial departures
from applicable procedures [or] misconstruction of
governing legislation * * The only question in¬
volved is whether the regulations required that appellant
be reassigned from the position of Puncher and Shearer
to that of Typewriter Repairman, or whether, to the con¬
trary, such reassignment would constitute a “promotion”,
as that term is defined in the regulations, to which
appellant was not entitled as a matter of right. If the
regulations did not require the reassignment sought, this
Court may not substitute its own judgment for that of the
agency in deciding whether appellant should have been
so promoted. Cutting v. Higley, C.A.D.C. No. 1289S,
decided May 17, 1956; Wagner v. Higley, C.A.D.C. No.
12910, decided May 17, 1956; Nash v. Interstate Commerce
Commission, 96 U.S. App. D.C. 203, 225 F. 2d 42, certiorari
denied, 350 U.S. 953; Bortin v. United States, 138 F. Supp.
251 (C. Cls.).
Appellant Was Not Entitled To Be Reassigned to the
Position of Typewriter Repairman, Since Such Re¬
assignment Would Have Constituted a Promotion to
Which Appellant Was Not Entitled as a Matter of
Right
Section 12 of the Veterans’ Preference Act, 5 U.S.C. S61,
provides that in a reduction in force competing employees
shall be released “in accordance with Civil Service Com¬
mission regulations” which shall give due effect to tenure
of employment, military preference, length of service, and
efficiency ratings, and that preference employees whose
efficiency ratings are “good” or better shall be retained in
preference to all other competing employees. 4 The statute
4 The complaint alleged violations of Section 4 of the Act of August 23,
1912, 5 XJ.S.C. 648, and Section 14 of the Veterans’ Preference Act, as
amended by the Act of August 4, 1947, 5 U.S.C. 863, in addition to violation
of Section 12 of the Veterans’ Preference Act. As appellant concedes in his
brief, however (Br. 9), Section 4 of the Act of August 23, 1912, was repealed
by Section 11(1) of the Act of September 23, 1950. See Fass v. Gray, 91
U.S. App. D.C. 28, 197 F. 2d 587 at 589, fn. 4, certiorari denied, 344 U.S. 839.
Section 14 of the Veterans’ Preference Act relates only to discharges for
10
thus leaves to the Civil Service Commission the task of
formulating rules and regulations to give effect to the
broad purposes expressed. Cf. Elder v. Bramnan, 341 U.S.
277; Hilton, v. Sullivan, 334 U.S. 323.
The action here complained of was taken pursuant to the
regulations thus promulgated. Appellant was duly notified
of his impending separation following the determination
that the reduction in force required his removal from the
position of Puncher and Shearer. The regulations, how¬
ever, gave appellant a limited right to be reassigned to a
position in another competitive level in lieu of separation.
In order to qualify for reassignment under the regulations,
it was necessary that appellant be “* * * willing to accept
a reasonable change in position * * *” and be “* * *
qualified for a continuing position in another competitive
level in his present competitive area in which an employee
with lower subgroup standing is retained # * *”
(Section 20.5(b)(2)). Since appellant met these require¬
ments and was qualified for several positions, he became
entitled as a matter of right to be offered reassignment
to that position which would result in the least reduction
in grade or pay (Section 20.5(b)(2) and 20.5(d)). This
right to reassignment was, however, conditioned by the
provision that “[n]o agency shall be required * * * to
promote any employee # * (Section 20.5(d)).
Appellant asserts that these regulations required that
he be offered reassignment to a higher-paying position
than that which was tendered him. In so contending he
accepts and relies on the validity of the regulations, as
indeed he must under the decisions of this Court involving
these regulations ( Cutting v. Higley, supra, and Wagner
v. Higley, supra) as vrell as those involving substantially
the same regulations. See Fass v. Gray, supra; Powell
v. Brannan, supra; cf. Bortin v. United States, supra;
Kelly v. United States, 138 F. Supp. 244 (C. Cls.). What
appellant objects to is the characterization of the re¬
assignment which he seeks as a “promotion”.
cause and has no application to reductions in force such as the one here in¬
volved. Ashley v. Boss, 89 U.S. App. D.C. 339, 191 P. 2d 655; Fass v. Gray,
supra .
10
thus leaves to the Civil Service Commission the task of
formulating rules and regulations to give effect to the
broad purposes expressed. Cf. Elder v. Brannan, 341 U.S.
277; IlUton v. Sullivan, 334 U.S. 323.
The action here complained of was taken pursuant to the
regulations thus promulgated. Appellant was duly notified
of his impending separation following the determination
that the reduction in force required his removal from the
position of Puncher and Shearer. The regulations, how¬
ever, gave appellant a limited right to be reassigned to a
position in another competitive level in lieu of separation.
In order to qualify for reassignment under the regulations,
it was necessary that appellant be “* * * willing to accept
a reasonable change in position * * *” and be * *
qualified for a continuing position in another competitive
level in his present competitive area in which an employee
with lower subgroup standing is retained * * *”
(Section 20.5(b)(2)). Since appellant met these require¬
ments and was qualified for several positions, he became
entitled as a matter of right to be offered reassignment
to that position which would result in the least reduction
in grade or pay (Section 20.5(b)(2) and 20.5(d)). This
right to reassignment was, however, conditioned by the
provision that “[n]o agency shall be required * * * to
promote any employee * * *” (Section 20.5(d)).
Appellant asserts that these regulations required that
he be offered reassignment to a higher-paying position
than that which was tendered him. In so contending he
accepts and relies on the validity of the regulations, as
indeed he must under the decisions of this Court involving
these regulations ( Cutting v. Tligley, supra, and Wagner
v. Tligley, supra) as well as those involving substantially
the same regulations. See Fass v. Gray, supra; Powell
v. Brannan, supra; cf. Bortin v. United States, supra;
Kelly v. United States, 138 F. Supp. 244 (C. Cls.). What
appellant objects to is the characterization of the re¬
assignment which he seeks as a “promotion”.
cause and has no application to reductions in force such as the one here in¬
volved. Ashley v. Boss, 89 U.S. App. D.C. 339, 191 F. 2d 655; Fass v. Gray,
supra.
11
As has been noted above, pages 2, 3, the determination
that a reassignment from the position of Puncher and
Shearer to that of Typewriter Repairman would constitute
a promotion was made under the Civil Service Commis¬
sion’s definition of “promotion” contained in the Federal
Personnel Manual, an official publication, and the
definition contained in a Naval Civilian Personnel
Instruction issued by the Department of the Navy and
approved by the Civil Service Commission (J.A. 39). The
former definition, which at the time here applicable was
found at page Rl-10 of the Federal Personnel Manual,
defined a promotion involving two ungraded positions as
advancement “[t]o another position with a higher rate
of compensation (not including salary differential or over¬
time pay) than his last previous rate * * •” (emphasis
added). The latter definition, issued for the guidance of
Department of the Navy personnel in applying the Civil
Service Commission regulations, defined such a promotion
as advancement “ # * * to a position with a higher
minimum salary (not including salary differential or over¬
time pay) * * *” (Naval Civilian Personnel Instruction
No. 160; emphasis added).
It is clear that under the latter definition the change
from Puncher and Shearer to Typewriter Repairman would
have been a “promotion”, since the minimum salary for
the former position was $1.75 and that for the latter
position was $1.80 (J.A. 16, 26, Br. 3). The former
definition leads to the same result, since the “rate of com¬
pensation” for the position of Puncher and Shearer was
from $1.75 to $1.95 per hour, while that for Typewriter
Repairman was from $1.80 to either $2.03 or $2.10 per
hour 5 (ibid). While it might be argued—although
appellant does not appear to do so 6 —that the regulatory
language, “rate of compensation”, was intended to refer
-• i
8 The record does not disclose which figure is correct for the maximum Type¬
writer Repairman pay, but since both figures are greater than the maximum
for Puncher and Shearer the question of which figure is the proper one is
immaterial for the purposes of this case.
6 See below, pages 13-14.
12
to the actual basic pay received by a particular employee
rather than to the range of the pay schedule for the posi¬
tion, the Civil Service Commisison has not so construed it.
The facts of this case, as well as the Commission’s
approval of the reference to “minimum salary” in Naval
Civilian Personnel Instruction No. 160 (J.A. 39), plainly
show that “rate of compensation” has been interpreted
to mean the scale of pay rather than actual pay.
This interpretation is controlling in determining the
intent of the regulation. In Bowles v. Seminole Rock and
Sand Co., 325 U.S. 410 at 413-414, the Supreme Court
stated:
Since this involves an interpretation of the adminis¬
trative regulation a court must necessarily look to the
administrative construction of the regulation if the
meaning of the -words used is in doubt. The intention
of Congress or the principles of the Constitution in
some situations may be relevant in the first instance to
choosing between various constructions. But the
ultimate criterion is the administrative interpretation,
which becomes of controlling weight unless it is
plainly erroneous or inconsistent with the regulation.
• * •
And in Bailey v. Richardson, 86 U.S. App. D.C. 248, 182
F. 2d 46, affirmed by an equally divided court, 341 U.S. 918,
this Court stated, at 182 F. 2d 52:
• * * The procedure followed represented an ad¬
ministrative interpretation of an administrative order,
and the courts follow such interpretations unless the
error is clear.
The First Circuit applied this same rule in L, Gillarde Co.
v. Joseph Martinelli <& Co., 169 F. 2d 60, holding that the
agency’s interpretation of its regulation should be
followed since it -was “* * * not plainly erroneous; it is
a possible and reasonable interpretation of the regulation,
even if not the only possible one.” 169 F. 2d at 61. Under
this rule, the court below properly adhered to the inter¬
pretation which the Civil Service Commission has placed
on the phrase “rate of compensation” as used in Section
13
20.5(b)(2) of its own regulations, and held that since the
pay schedule for the position to which appellant seeks re¬
assignment was higher than that for his previous position
the reasssignment would necessarily constitute a
promotion.
Moreover, this interpretation of the phrase “rate of
compensation ” is the only one which harmonizes the rules
applicable to ungraded positions with those applicable to
graded positions. With respect to graded positions, a
“promotion” is defined as the “ [ajdvancement of an
employee * * * [t]o a higher grade when both positions
are under the Classification Act or when both positions are
under the same agency-established pay schedule in which
grades are assigned * * *” (Federal Personnel Manual,
page Rl-10; emphasis added). Accordingly, a change from
the highest step of one grade to the lowest step of the next
higher grade constitutes a promotion, despite the fact that
the lowest step of the next grade may, and probably does,
carry a lower salary rate. 7 As a result, if the positions of
Puncher and Shearer and Typewriter Repairman were
graded, the latter being a higher grade, the fact that
appellant happened to be receiving a basic salary of $1.S2
while the lowest salary for the position of Typewriter
Repairman was $1.80 would be irrelevant in determining
whether the reassignment sought constituted a promotion.
The Civil Service Commission’s application of the term
“rate of compensation” in the same regulation makes this
rule equally applicable to ungraded positions.
Appellant does not appear to rely, however, on a claim
that the regulatory definition was misinterpreted or mis¬
applied. Instead, he apparently chooses to ignore the reg-
1 For example, a portion of the present compensation schedule for the Gen¬
eral Schedule of Civil Service employees is as follows (5 U.S.C.A. $ 1113(b)):
Grade Per annum rates
GS-1 . $2,690 $2,775 $2,860 $2,945 $3,030 $3,115 $3,200
GS-2 . 2,960 3,045 3,130 3,215 3,300 3,385 3.470
GS-3 . 3,175 3,260 3,345 3,430 3,515 3,600 3,685
GS-4 . 3,415 3,500 3,585 3,670 3,755 3,840 3,925
14
ulation as inconclusive under the quixotic theory that the
regulatory definition in force at the time of the action com¬
plained of may not be relied on because the definition has
been “ • * * subject to revision and change * * * ” at vari¬
ous times by amendatory regulations (Br. 14), and on the
corollary claim that appellant has devised a more “ realis¬
tic’ ’ definition of the word * 1 promotion’’ than that con¬
tained in the regulations then in force (Br. 16). This is
indeed a novel proposition; its mere statement serves to
refute its validity. It totally ignores the Commission’s
broad authorization “ * * * to promulgate rules and regu¬
lations for the administration and enforcement * * * ” of
the laws relating to veterans’ preference (5 U.S.C. 860),
and the specific mandate of Section 861 that reductions in
force are to be carried out “ * * * in accordance with Civil
Service Commission regulations * * Cf. Powell v.
Brannan, 91 U.S. App. D.C. 16,196 F. 2d 871, 873; Johnson
v. TFar Assets Administration, 171 F. 2d 556, 557 (C.A. 7).
Obviously, the only regulations which are here applicable
are those which were in force at the time the action was
taken, not some regulations which might have been in force
at some other time or which a particular employee might
think should have been in force. Cf. Fass v. Gray, 91 U.S.
App. D.C. 28, 197 F. 2d 587, 592, certiorari denied, 344
U.S. 839. Those regulations clearly preclude the relief
which appellant here seeks: a promotion to which he is
not entitled as a matter of right.
15
CONCLUSION
For the foregoing reasons we respectfully submit that
the judgment below should be affirmed.
George Cochran Doub,
Assistant Attorney General,
Oliver Gasch,
United States Attorney ,
Melvin Richter,
B. Jenkins Middleton,
Attorneys,
Department of Justice ,
Washington 25, D. C.
■Ct U. S. GOVERNMENT PRINTING OFPICE l»S«-SRSCOS/P.O. t«OM
